Hanslow v Weblin

There is before me an application for the Court to determine today as a separate question pursuant to the Uniform Civil Procedure Rules 2005, r 28.2 whether or not a caveatable interest exists in land jointly owned by the defendants.

The equitable interest supporting the caveat arises from a deed with one of the defendants only, by which he charged his interest in the house that he and his wife owned.

The argument in support of the notice of motion is that there was no interest in the land sufficient to support a caveat because the land was held jointly and one joint tenant could not charge an interest in the property unless the joint tenancy was severed.

In opposition to that argument reliance was placed on So v Li [2009] NSWSC 32 in which the then Chief Judge in Equity, Justice Young, said at [11] that a co-owner holding as a joint tenant could charge an interest in the land: “The proposition that a co-owner cannot charge his or her own interest is contrary to authority. First of all, it runs against the maxim “alienatio rei praefertur iuri accrescendi” and it is contrary to the decision of Justice McInerney in Lyons v Lyons [1967] VR 169. Professor Butt in his book on Land Law in the Fifth Edition at para [1448] rejects it almost out of hand with authorities."

The existence of that decision means that there is a serious issue to be determined as between the proposition advanced by the defendants on the one hand and the decision of the Chief Judge in Equity on the other.

A secondary argument was raised in that the question whether the joint tenant was capable of charging his interest in the land should be determined by the matter being listed before a Judge as a preliminary point.

There are many authorities for the proposition that the ordinary course is that all issues in a trial should be dealt with at the one time. There are exceptions to that course, this is not one of them.

There are pleadings in this matter that not only raise the question whether there was a caveatable interest, but also raise the question whether there was an estoppel as a result of reliance on the deed and the interest in the property thereunder. And there has been a further application for loan since the first loan.

In these circumstances, I reject the notion that the question of the caveatable interest is a discrete one that can, in the interests of a just, quick and cheap resolution of the issue, be determined separately.

I therefore dismiss paragraph 1 of the notice of motion. I order that costs be costs in the cause.