ByLawyers News and Updates

Caveats – Insufficient proceeds from settlement

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By Russell Cocks, Solicitor

First published in the Law Institute Journal

The Torrens system (s 89 Transfer of Land Act 1958) allows third parties interested in land to record that interest on the title to the land by lodging a caveat. Unlike normal dealings that are registered on title, a caveat is ‘recorded’ on title. Consequently, the recording of a caveat in no way improves the status of the interest which is recorded, unlike the registration of a dealing which grants the registered interest indefeasibility.

A caveat entitles the caveator to be notified of any proposed dealing with the title and provides the caveator with the ability to establish the priority of the caveator’s interest over any competing interest by issuing proceedings within 30 days of receiving notice. But the real impact of a caveat in the world of conveyancing is the negative effect that the recording of the caveat on a title has on any transaction involving that title. Any prospective purchaser of the land, and particularly any prospective financier of a purchaser, will not proceed with the transaction if a caveat remains recorded over the title.

Thus a vendor who wants a proposed sale to proceed will be obliged by the purchaser to ‘free’ the land of the burden of the caveat by production of a withdrawal of caveat at settlement. In the normal course of events this is within the ability of a vendor, who arranges for a payment to the caveator from the settlement proceeds and a withdrawal is produced by the caveator in return. But what is the situation when the settlement proceeds are not sufficient to satisfy the caveator’s claim?

This situation often arises where the vendor is suffering mortgage stress and negotiates a sale in anticipation of receiving sufficient funds at settlement to discharge the mortgage and any other claims over the land, but finds that the effluxion of time between contract and settlement and increasing interest, costs, fees and charges result in a shortfall.

The registered mortgagee demands repayment in full, or at least the whole proceeds of sale if there is a shortfall, and there are no excess funds available to satisfy a caveator. Is the caveator obliged to nevertheless provide a withdrawal of caveat so that the settlement can proceed?

A caveator who refuses to withdraw in such a situation is entitled to argue that the caveator is merely insisting on its legal rights and should not be obliged to surrender those rights for no compensation. On the other hand, it could be argued that such a caveator is adopting a ‘dog in a manger’ attitude – if I am not going to get paid then no-one is. A party interested in having the matter proceed to settlement could issue proceedings pursuant to s 90(3) Transfer of Land Act 1958 for a declaration that a withdrawal be provided on the basis that there are no excess funds available for the caveator and the ‘balance of convenience’ favours the settlement proceeding.

There is some authority for this proposition in the New Zealand case of Pacific Homes Ltd (In Receivership) v Consolidated Joinery Ltd [1996] 2 NZLR 652 where a caveat was ordered to be removed because ‘there is no practical advantage in maintaining it’. However that was in the context of a mortgagee sale and s 91(2A) Transfer of Land Act 1958 now applies in a mortgagee sale environment to defeat caveats claiming money that were lodged subsequent to the mortgage. The analogy may however still apply in respect of caveats claiming something other than money, for example, a terms contract.

There may also be some support for the proposition that the caveator should withdraw provided by the case of Capital Finance Australia Limited v O’Bryan Group P/L [2003] VSC 355. That case concerned a warrant of sale and seizure that had been lodged by a creditor and was holding up settlement of a sale that was being supervised by the mortgagee. It was clear that the proceeds of the sale would not repay registered mortgages, let alone satisfy the claim of the judgment creditor who had lodged the writ. The mortgagee successfully sought the removal of the warrant to allow the sale to proceed on the basis that there was no realistic prospect of the warrant achieving anything for the creditor and that other parties were suffering detriment from the delay.

Legal proceedings involve expenditure of substantial amounts of money in an environment that is, by definition, money-poor. An alternative is to negotiate a compromise whereby the pain is shared. The party likely to receive the biggest benefit, usually the mortgagee, might recognise that the delay and cost associated with reverting to a mortgagee sale justifies agreeing to a part payment to the caveator and the caveator might recognise that a compromise is advisable as forcing a mortgagee sale will result in automatic removal of the caveat.

Tip Box

Whilst written for Victoria this article has interest and relevance for practitioners in all states.

Caveats – Forcible removal 1

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By Russell Cocks, Solicitor

First published in the Law Institute Journal

The Torrens system (s 89 Transfer of Land Act 1958) allows third parties interested in land to record that interest on the title to the land by lodging a caveat. Unlike normal dealings that are registered on title, a caveat is ‘recorded’ on title. Consequently, the recording of a caveat in no way improves the status of the interest which is recorded, unlike the registration of a dealing which grants the registered interest indefeasibility.

A caveat entitles the caveator to be notified of any proposed dealing with the title and provides the caveator with the ability to establish the priority of the caveator’s interest over any competing interest by issuing proceedings within 30 days of receiving notice. But the real impact of a caveat in the world of conveyancing is the negative effect that the recording of the caveat on a title has on any transaction involving that title. Any prospective purchaser of the land, and particularly any prospective financier of a purchaser, will not proceed with the transaction if a caveat remains recorded over the title.

Thus a vendor who wants a proposed sale to proceed will be obliged by the purchaser to ‘free’ the land of the burden of the caveat by production of a withdrawal of caveat at settlement. In the normal course of events this is within the ability of a vendor, who arranges for a payment to the caveator from the settlement proceeds and a withdrawal is produced by the caveator in return. But what is the situation when the settlement proceeds are not sufficient to satisfy the caveator’s claim?

This situation often arises where the vendor is suffering mortgage stress and negotiates a sale in anticipation of receiving sufficient funds at settlement to discharge the mortgage and any other claims over the land, but finds that the effluxion of time between contract and settlement and increasing interest, costs, fees and charges result in a shortfall. The registered mortgagee demands repayment in full, or at least the whole proceeds of sale if there is a shortfall, and there are no excess funds available to satisfy a caveator.

Is the caveator obliged to nevertheless provide a withdrawal of caveat so that the settlement can proceed?

A caveator who refuses to withdraw in such a situation is entitled to argue that the caveator is merely insisting on its legal rights and should not be obliged to surrender those rights for no compensation. On the other hand, it could be argued that such a caveator is adopting a ‘dog in a manger’ attitude – if I am not going to get paid then no-one is. A party interested in having the matter proceed to settlement could issue proceedings pursuant to s 90(3) Transfer of Land Act 1958 for a declaration that a withdrawal be provided on the basis that there are no excess funds available for the caveator and the ‘balance of convenience’ favours the settlement proceeding.

There is some authority for this proposition in the New Zealand case of Pacific Homes Ltd (In Receivership) v Consolidated Joinery Ltd [1996] 2 NZLR 652 where a caveat was ordered to be removed because ‘there is no practical advantage in maintaining it’. However that was in the context of a mortgagee sale and s 91(2A) Transfer of Land Act 1958 now applies in a mortgagee sale environment to defeat caveats claiming money that were lodged subsequent to the mortgage. The analogy may however still apply in respect of caveats claiming something other than money – for example, a terms contract.

There may also be some support for the proposition that the caveator should withdraw provided by the case of Capital Finance Australia Limited v O ’Bryan Group P/L [2003] VSC 355 . That case concerned a warrant of sale and seizure that had been lodged by a creditor and was holding up settlement of a sale that was being supervised by the mortgagee. It was clear that the proceeds of the sale would not repay registered mortgages, let alone satisfy the claim of the judgment creditor who had lodged the writ. The mortgagee successfully sought the removal of the warrant to allow the sale to proceed on the basis that there was no realistic prospect of the warrant achieving anything for the creditor and that other parties were suffering detriment from the delay.

Legal proceedings involve expenditure of substantial amounts of money in an environment that is, by definition, money-poor. An alternative is to negotiate a compromise whereby the pain is shared. The party likely to receive the biggest benefit, usually the mortgagee, might recognise that the delay and cost associated with reverting to a mortgagee sale justifies agreeing to a part payment to the caveator and the caveator might recognise that a compromise is advisable as forcing a mortgagee’s sale will result in automatic removal of the caveat.

Tip Box

Whilst written for Victoria this article has interest and relevance for practitioners in all states.

Disastrous work Christmas parties – Hopefully these don’t ring a bell…

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By Brad Petley

Acumen Lawyers Workplace relations and safety law specialists

The work Christmas party season is in full swing by now. If your organisation has already had its Christmas party, hopefully everything went well and from a workplace law standpoint there were no issues that arose.

If your organisation is yet to have its annual gathering, hopefully all the risk management HR ‘boxes have been ticked’.

  • All reasonable steps have been taken to prevent unacceptable behaviours from occurring at the work Christmas party;
  • Managers are aware of their responsibility to monitor and supervise at the function;
  • Employees have been reminded of applicable policies and behavioural standards (for example; sexual harassment, bullying and OHS);
  • Light alcohol and no alcohol options are available;
  • In keeping with the lighthearted spirit of the festive season let’s visit three work Christmas party disasters.

Top 3 Work Christmas Party Disasters

Number 1

Coming in at number one would have to be the 2007 “party to end all parties” involving employees of a Sydney Telstra retail store. What started out as a work dinner function later that evening went awry at a nearby motel with a store employee having sexual intercourse with another employee within the view and/or earshot of the three other employees. The employee responsible was ultimately dismissed but in order for Telstra to successfully defend its actions, the ensuing litigation went as far as the Full Bench of the then Australian Industrial Relations Commission: Telstra v Streeter [2008] AIRCFB 15 (24 February 2008)

Number 2

In the “what were they thinking” category is a 2002 work Christmas party at which a waitress served food and drinks to clients and other employees at a party held on work premises – while topless and in lingerie. A female employee was not invited to the party and was told, “It’s a party for the boys…you don’t need to worry about it.” Upon finding out about the presence of the topless waitress, the employee resigned from her employment and ultimately sought counselling in relation to the distress she felt at the time. Although the woman gave evidence that she would not have wanted to attend the party if she had known a topless waitress was going to be there, her complaint of sex discrimination against her former employer was successful on the basis of her not being made to feel welcome to attend the Christmas party because of her gender: Carter v Linuki Pty Ltd trading as Aussie Hire & Fitzgerald (EOD) [2005] NSWADTAP 40 (22 August 2005).

Number 3

Perhaps in the “why bother” category is the 1999 case in which a male employee was dismissed after he exposed himself twice before approximately 50 company employees plus partners at a Christmas function, when performing what he considered to be a ‘party trick’ called the “Pelican”. Not surprisingly the Australian Industrial Relations Commission did not see any humour in the employee’s actions and dismissed his legal claim: S. Mason v Boyne Smelters Limited – 880/99 B Print R7701 [1999] AIRC 934 (20 August 1999).

Warning, warning – Taking account of past workplace sins when disciplining employees – Part 2

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By Brad Petley

Acumen Lawyers Workplace relations and safety law specialists

In brief

In Part 2 of our discussion about the recent Patrick Stevedores case (Tony Carrick v Patrick Stevedores Holdings Pty Limited [2012] FWA 4480), we consider whether the actions of an employer over a prior disciplinary warning can be called into question in a later dismissal case by Fair Work Australia (FWA).

Your latest ‘HR headache’

Picture this situation…You’re a senior HR (human resources) practitioner within a large company. One of your subordinates, ‘Melanie’, dutifully reports the outcome of a recent HR investigation into alleged employee misconduct. You note that the severity of the misconduct would have justified dismissal if the allegation were substantiated. Melanie reports that she ‘believed’ the employee had committed misconduct but due to some unfortunate circumstances there was not sufficient evidence. Melanie took the ‘safe route’ and, rather than dismissing the employee, she issued the employee with a formal warning.

You feel relieved that Melanie did not dismiss the employee because of the evidentiary issues but are nevertheless troubled by the outcome. You remember ‘someone’ telling you once that an incorrectly issued warning is never capable of external review. You are wondering whether that view is correct.

Warning misconceptions

Misconceptions about when a disciplinary warning may be issued are not uncommon. Some employers consider that if there is not sufficient evidence to substantiate misconduct (which would have justified dismissal) as an alternative, they may issue a formal warning. Some also believe that a flawed disciplinary warning can somehow be ‘swept under the carpet’ and is never capable of review. The Patrick Stevedores case shows both beliefs to be incorrect.

Patrick Stevedores case

In this case, the employee was dismissed for a serious safety breach which caused a collision between forklifts at the Fishermans Island Brisbane terminal. Some months prior to that incident, the employee had received a final warning for another safety breach. The employee had other instances of unsatisfactory performance or conduct on his disciplinary record.

The employee argued that the final warning was not justified, and should not have been taken into account for the ultimate dismissal. Importantly, this caused Fair Work Australia to look into the circumstances of the issue of the formal warning.

Ultimately, FWA found that the final warning was justified, as was its use in the subsequent dismissal of the employee.

The point to note here is that the employer was put into a situation where it was forced to substantiate:

  1. its issue of the prior warning; and
  2. its use of the warning (with other disciplinary sanctions) as justification for the ultimate dismissal.

Lessons for employers

  1. The circumstances behind a prior disciplinary warning can be questioned at a later dismissal hearing.
  2. There are a number of disciplinary options open to employers, but whatever action is taken, the same standards of proof apply.
  3. A formal warning should be approached in the same way that a dismissal would be approached – that is, where sufficient evidence does not exist for a dismissal, a formal warning is not an alternative.
  4. If a disciplinary warning is wrongly issued, it should be withdrawn.

Honestly! Let’s talk about employee dishonesty

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By Brad Petley

ACUMEN LAWYERS WORKPLACE RELATIONS AND SAFETY LAW SPECIALISTS

In brief

An employee owes a duty to their employer to be honest in their dealings with it. This is no more apparent than when the employee is the subject of an investigation into alleged misconduct.

A recent dismissal case before Fair Work Australia (FWA), Gunning v Cetnaj Queensland Pty Ltd [2012] FWA 6627 (3 August 2012), provides useful guidance for employers about the effect of an employee’s dishonesty during an HR (human resources) investigation.

The Gunning case

The dismissed employee, Gunning, had worked as a sales representative at the Burleigh Heads branch of the employer’s lighting products business. A customer’s attempt to return a product for a refund uncovered an apparently fraudulent scheme by Mr Gunning’s flatmate, who had formerly worked as a sales representative for the employer, involving a diversion of refund money to a joint bank account of Mr Gunning and his flatmate.

The employer conducted an investigation and subsequently dismissed Mr Gunning for ‘theft and misconduct’ over his alleged involvement in the fraud.

At the unfair dismissal hearing, FWA found that the evidence did not support a finding that Mr Gunning was involved in the fraud originally investigated. However, FWA went on to find that Mr Gunning was not honest with his employer when he was interviewed about his knowledge of the fraud concerns and that of itself formed a valid reason for his dismissal. Accordingly, the employee was found to have been validly dismissed.

FWA made the following important points about an employee’s duty during an HR investigation:
  1. An employee owes a duty to his employer to be honest in his dealings with it.
  2. To do otherwise is to compromise the necessary trust and confidence that is an integral part of the employment relationship.
  3. This does not mean that an employee must answer any and all questions posed to him or her by his employer in an investigation or interview.
  4. But it does mean that an employee must respond honestly to any genuine enquiry made of the employee that is relevant to the conduct or other issues in question or under investigation.

Points to take away

  1. The existence of the relationship of trust and confidence is vital to an employment relationship.
  2. During an investigation into employee misconduct, employers may uncover or be faced with misconduct outside of that which is being investigated.
  3. A dishonest response to a genuine and relevant enquiry is destructive of the relationship of trust and confidence.
  4. A failure to respond to questions honestly can form a stand-alone (valid) reason for an employee’s dismissal.
  5. If in doubt, employers should seek advice.

Warning, warning – Taking account of past workplace sins when disciplining employees – Part 1

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By Brad Petley

Acumen Lawyers Workplace relations and safety law specialists

In brief

A recent dismissal case before Fair Work Australia (FWA) serves as a useful illustration of the issues facing employers when weighing up an employee’s poor disciplinary record and whether a dismissal would be justified.

Warning confusion

Picture this situation. You have an employee who has committed a breach of discipline in the workplace. For present purposes, we will refer to the employee as ‘Jim’. Let’s say that Jim is one hour late for work. You have interviewed him. He was unable to offer a reasonable excuse. You are wondering what to do with him. Jim is not the easiest of employees. He has received a number of warnings previously over conduct and/or performance issues. You are a tad fed up and are considering whether you can terminate Jim’s employment. You remember ‘someone’ telling you once that employers can only take account of ‘like for like’ past disciplinary issues when deciding if a justification exists for a termination of employment. None of Jim’s previous warnings have related to lateness for work. Jim is sitting outside your office. You are wondering what to do.

What does the Fair Work Act say?

Confusion over the prior warnings that may be taken into account is not uncommon amongst some employers.

In determining whether a dismissal was harsh, unjust or unreasonable, Fair Work Australia is required to take into account a number of factors. If the dismissal related to the unsatisfactory performance of an employee, FWA is required to take into account whether the person had been warned about that unsatisfactory performance before the dismissal.

In a previous edition of Workplace Acumen, we pointed out that the unfair dismissal laws in the Fair Work Act do not set out a minimum threshold (e.g. three warnings) before an employer is entitled to dismiss a misbehaving and/or underperforming employee. Depending on the circumstances of a matter there may be no necessity for a warning to have been issued before an employer is entitled to dismiss the employee. Much will depend on the facts and circumstances of the case.

Recent case

The recent Patrick Stevedores case (Tony Carrick v Patrick Stevedores Holdings Pty Limited [2012] FWA 4480) is a useful example of a dismissal involving an employee who had been issued with a number of prior warnings before he was ultimately dismissed.

In this case, the employee was dismissed in November 2011 for a serious safety breach causing a collision between forklifts at the Fishermans Island Brisbane terminal. Prior to that incident, the employee had received a final warning (in April 2011) for another safety breach. Both acts were serious breaches of Patrick’s Safety Cardinal Rules workplace safety policy.

The employee’s prior disciplinary record also included warnings for:

  • sleeping during a shift sometime during late August 2010;
  • failing to attend work on 23 December 2009;
  • using his Maritime Security Identification Card to admit another employee to the Patrick site on 14 April 2009.

FWA took into account that the employee’s overall disciplinary record was poor and that he was the subject of a final warning at the time of the most recent breach. Not surprisingly, FWA ruled the employee’s dismissal was justified.

The point to note here is the combination of diverse disciplinary infractions that the employer took account of before deciding to dismiss.

Lessons for employers

Employers should:
  1. Employers are not required to only take into account prior warnings for the same type of performance or conduct issue (i.e. ‘like-for-like’ issues).
  2. The Patrick Stevedores case is an example of a situation where an employer justifiably took account of a series of prior warnings for a variety of workplace issues (i.e. breaches of workplace procedures, unsatisfactory performance and misconduct).
  3. If an employer is in doubt about whether it is able to dismiss an employee based on the employee’s prior disciplinary record, always seek advice.

Employer’s redundancy assumption goes awry in dismissal case

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By Brad Petley

Acumen Lawyers Workplace relations and safety law specialists

In Brief

In the recent appeal case about a redundancy, Fair Work Australia (“FWA”) rejected an employer’s “assumption” that a manager would be insulted if offered redeployment to a more junior position following a restructure: Jenny Craig Weight Loss Centres Pty Ltd v Margolina [2011] FWAFB 9137.

What does the Fair Work Act say about redundancy?

The Fair Work Act sets out a number of requirements in order for a dismissal to be considered unfair. One such requirement is that the dismissal must not be a case of “genuine redundancy.”

If an unfair dismissal claim is lodged but FWA finds that the dismissal was because of a “genuine redundancy,” it will bring the claim to an end.

A dismissal will not have been a genuine redundancy, if it would have been “reasonable” in all the circumstances for the employee to have been redeployed within the employer’s enterprise (or an entity associated with the employer’s enterprise).

The Jenny Craig dismissal case

In 2011, Jenny Craig Weight Loss Centres (“Jenny Craig”) restructured its operations resulting in a female manager’s redundancy and dismissal.

Prior to the redundancy, the woman was employed as a Regional Manager. The employee’s position involved significant responsibility including hiring and firing staff, as well as the strategic direction and revenue growth of Jenny Craig centres within her region.

The employee challenged her dismissal by lodging an unfair dismissal claim with Fair Work Australia (FWA).

Under the Microscope – The Employer’s Actions

During the appeal hearing, it emerged that:

  • The possibility of redeployment was never discussed with the employee
  • There were a number of more junior management positions vacant at the time (although of lesser responsibility and pay) including that of “Centre Leader”
  • The employee had the necessary skills, qualifications and experience for a Centre Leader position
  • If offered, the employee would have accepted a Centre Leader position
  • No alternative position was offered to the employee

An excuse put forward by the employer for failing to offer redeployment was that an offer of a lesser position, it had assumed, would be taken as a “complete insult” by the employee concerned.

The Decision

FWA held that the dismissal was not a case of a “genuine redundancy” because redeployment to a Centre Leader position would have been reasonable in all the circumstances.

Factors taken into account by FWA included that:

  • There had been an option of redeployment to a centre leader position
  • The employee had the necessary skills, qualifications and experience for that position
  • There was no reason to disbelieve the employee’s evidence that she would have accepted the position if it were offered

Lessons for Employers

Employers should:

  • If considering a restructure, be mindful of the Fair Work Act’s “genuine redundancy” requirement
  • If redeployment is available but to a lesser position – never assume that an employee will reject redeployment
  • Whether an employee may be “insulted” by a particular offer of redeployment is not a valid reason for failing to discuss redeployment with the employee
  • If in doubt about whether an employee has the relevant skills, qualifications and experience for a particular vacancy – discuss those concerns with the employee and seek his/her feedback.

Ensure compliance with workplace laws

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By Brad Petley

Acumen Lawyers Workplace relations and safety law specialists

Even though the Fair Work Act 2009 has been in full operation for just over 2 years, we are continually surprised by the amount of outdated employment contracts and workplace policies still in use. The Fair Work Act introduced the National Employment Standards (NES) and Modern Awards. The NES brought about changes to a number of minimum terms and conditions, which necessitated amendment to many existing employment contracts and workplace policies in order to bring them in line with the NES.

The risk to employers who fail to rectify non-compliant contracts is legal action by the Fair Work Ombudsman for a breach of the NES and/or a relevant Modern Award and the prospect of a civil penalty of up to $6,600 for an individual employer and $33,000 for a corporate employer.

The solution for remedying non-compliant employment contracts is relatively simple – re-issue new compliant agreements. If changes to existing agreements were merely a restatement of applicable Fair Work Act provisions, the consent of affected employees would not be needed. That is because the revised employment contract would be merely recognising the changes automatically brought about by the commencement of the Fair Work Act. Of course, if an employer wished to introduce other terms into a revised contract (unrelated to the Fair Work Act’s changes), those terms would require the agreement of the employee affected.

Ensure Workplace Policies and Employment Contracts are workable.

In the 2011 case of Tara Davies v Hip Hop Pty Ltd T/A Hippity Hop Child Care (an unfair dismissal case) Fair Work Australia considered an employer’s policy so poorly worded that a breach of the policy could not constitute a valid reason for a dismissal. Thus, the employer’s dismissal action was found to be unfair.

A mistake that employers sometimes make is to create unnecessary disciplinary restrictions in their workplace policies. The “3 warnings before dismissal stipulation” is somewhat of an HR myth. Some employers mistakenly include such a precondition in workplace policies as well-intentioned guidance for their managers to follow. In reality, however, such restriction would leave a manager without the necessary discretion to take dismissal action when faced with serious misbehavior, if the requisite amount of prior warnings had not been issued.

Industrial tribunals often take a dim view of an employer’s failure to follow its own procedure, if it resulted in an employee’s dismissal. Where an employee’s dismissal is found to be unfair, an order for reinstatement of the employee or the payment of monetary compensation could follow.

How many warnings are necessary?

The Fair Work Act does not set out any minimum amount of warnings that must be issued in order for a dismissal to be considered fair. Whether none, one or more prior warnings are appropriate before an employer may dismiss a misbehaving or underperforming employee, it will depend on the facts and circumstances of each case.

If an employer is unsure of its rights or obligations, advice is always recommended.

Lessons to take-away

Employers should:

  1. Audit their business’s employment contracts and policies to ensure compliance with the National Employment Standards and modern awards.
  2. If necessary – reissue new (compliant) employment contracts
  3. Amend workplace policies that are found to be non-compliant with workplace laws and/or containing flawed or overly prescriptive provisions.
  4. If there are none in place – implement written employment contracts and written workplace policies as soon as possible.
  5. Seek advice and assistance, if in doubt.

Costs and caveats

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By Russell Cocks, Solicitor

First published in the Law Institute Journal

A caveat is a document authorised by s 89 Transfer of Land Act 1958 (Vic.) as a means by which a person claiming an interest in the land of another person can record that interest on the title to land owned by that other person. The virtue of a caveat is that it serves to give notice to the world of the interest of the caveator and generally means that a person dealing with the registered proprietor of the land will require that the caveat be satisfied prior to completion of any transaction. A caveat is often used by a person who is owed money by the registered proprietor to provide quasi-security for that debt.

A caveat must be supported by a caveatable interest in the land and whilst a simple debt owed by the registered proprietor to a creditor will not, of itself, create a caveatable interest, a debt supported by a charging clause will do so. Thus a document that records the debt and charges the land with repayment of that debt will justify a caveat.

Lawyers perform services for clients and are entitled to charge costs for those services. Many lawyers enter into costs agreements with clients in respect of those costs and those costs agreements may include a term whereby the client charges the client’s land, or the client’s interest in the land of another, with payment of those costs: Porter & Anor v Bonarrigo [2009] VSC 500. Prudently, the costs agreement would also include a term whereby the client acknowledges that the lawyer may lodge a caveat over that land to secure payment of those costs.

There may be an argument that the lawyer in such circumstances should advise the client to seek independent legal advice in relation to the proposed charge and caveat, but that is a matter for another day.

In passing it may be noted that the caveat may be lodged against a property even if the client is only one of the registered proprietors and indeed may be lodged against the property of a person other than the client, if it can be established that the client also has an (unregistered interest) in that property, for instance, by way of a constructive trust.

Thus caveats are common in family law disputes where one party may not have access to funds but does have an interest (either registered or unregistered) in matrimonial property. However the case of Brott v Shtrambrandt [2009] VSC 467 highlights a potential problem with such caveats, particularly in the family law area. Beach J. held that lawyers’ costs agreements are, in appropriate circumstances, subject to what was then the Consumer Credit (Victoria) Code, arising out of the Consumer Credit (Victoria) Act 1995, the current equivalent of which is the National Credit Code, arising out of the National Consumer Credit Protection Act 2009 (Cth).

The code is designed to regulate consumer lender. At first glance one might wonder how a costs agreement can constitute lending, but the various definitions in the Act mean that deferral of payment of a debt constitutes the giving of credit and any agreement to secure the payment of that debt constitutes a mortgage. If the agreement includes a provision whereby ‘a charge is or may be made for providing the credit’ then the code applies. Lawyers are entitled to charge interest on unpaid accounts (Legal Profession Act 2004 s 3.4.21(4)) and a costs agreement that provides for the payment of interest will be a ‘credit contract’. A lawyer’s practice clearly satisfies the requirement that the credit be provided in the course of business and so, provided the client is a ‘natural person’ or a ‘strata corporation’ and the ‘credit’ is provided for personal purposes, the costs agreement will be subject to the National Credit Code. These two latter requirements makes the code particularly relevant in a family law environment, but it will apply to all clients who operate as a personal, as opposed to corporate, entity in other than a business environment.

A costs agreement may therefore be a ‘credit contract’ and also constitute a ‘mortgage’ under the National Credit Code. Section 44(1) of the code requires a mortgage to ‘describe or identify the property which is subject to the mortgage’ and subsection (2) provides that ‘a provision in a mortgage that charges all the property of the mortgagor is void’. Thus a provision in a costs agreement that fails to identify the charged property or seeks to charge all the property of the client will be struck down and any caveat lodged pursuant to such a costs agreement will be susceptible to challenge.

This decision later played out in Shtrambrandt & Anor v Hanscombe & Ors [2012] VSC 102. Beach J. had identified the successful legal challenge to the caveats lodged pursuant to the costs agreement independently of arguments advanced by the parties. By that stage Shtrambrandt was self-represented but he had been represented by various solicitors and barristers in the proceedings over several years and he sued those lawyers for failing to have identified this defence. After a 13-day trial in relation to this and other issues Ferguson J. decided that, given the novelty of the argument, the lawyers had not been negligent in failing to identify that defence.

Tip Box

Whilst written for Victoria this article has interest and relevance for practitioners in all states.

Subdivision – Off the plan sales – Materially affects

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By Russell Cocks, Solicitor

First published in the Law Institute Journal

Many properties are sold ‘off the plan’. This is the phrase used to describe a property that is a lot on a proposed plan of subdivision, meaning that the plan of subdivision creating the lot has been drawn but it is not yet registered at the Land Titles Office.

Historically, it was not permissible to sell ‘off the plan’. Until amendments to the Sale of Land Act 1962 it was basically illegal to enter into a contract for the sale of a piece of land unless that land had its own title. Unfortunately the subdivision process can be very time consuming as the infrastructure required for the plan to get to a stage where responsible authorities are satisfied that the plan can be registered and separate titles issued is often substantial. In the case of land subdivision, this involves the provision of roads and services; and, in the case of building subdivision, it involves construction of the building. However the market consisted of vendors who were keen to secure purchasers for these separate lots and purchasers who were keen to secure their ‘little piece of heaven’ and so the restriction on sale that was a dampener on economic activity was eased.

However, in recognition that such contracts generally involve a developer and a consumer and therefore are conducted in an uneven bargaining environment, some restrictions still apply to such sales. These restrictions also recognise that there is likely to be a substantial delay between contract and settlement. Indeed, this very month, an obligation to include a conspicuous Notice to that effect in every off the plan contract has come into force. Other statutory provisions relating to such sale include limitation on the amount of the deposit and an obligation that it be held on trust, an obligation to include information about land surface works, a default period for registration (sunset clause) after which time the purchaser may avoid the contract and protection against changes to the proposed plan. These obligations require the inclusion of various provisions in the contract and these are included in the General Conditions.

Despite the fact that off the plan sales form a substantial part of the market, there have been relatively few decisions that have considered the meaning of these statutory protections. In the apartment market, there were some proceedings involving dissatisfied purchasers in the early days of the Docklands project, but those complaints tended to relate to price rather than off the plan issues. In the land subdivision market, the lack of cases probably reflects the fact that it is just too expensive for John Citizen to consider taking a land developer to Court in relation to such matters.

In recent years off the plan sales have become popular in an area that is something of a combination of the other two areas. Urban renewal and infill housing has created a market for small land subdivisions that involve the subdivider either constructing a home on the subdivided land or arranging for that construction. This scenario produced the recent case of Joseph Street P/L v Tan [2012] VSCA 113 discussed in the September 2012 column and has now produced Besser v Alma Homes P/L [2012] VSC 460.

This case involved a 4 lot plan of subdivision of a large block on a main road in Caulfield and the purchaser entered into an off the plan contract for a ‘front’ unit for $1,250,000. The contract included a copy of the proposed plan of subdivision which included a plan showing a common driveway between the two front blocks giving road access for the two rear units and revealed that an owners corporation would be created with each unit having a 25% entitlement and liability. After registration of the plan the purchaser became aware that the lot entitlement and liability had changed so that each front unit had an entitlement and liability of 1 out of 202 – less than 0.5%. This unilateral decision by the developer had apparently been made on the basis that the front units would not use the common property and, on a liability basis, could be seen to advantage the front units.

However this proposal had not been communicated to the purchaser, who took the view that the change amounted to “an amendment to the plan of subdivision which will materially affect the lot” thereby entitling the purchaser to avoid the contract pursuant to s 9AC of the Sale of Land Act 1962. The vendor argued that the change to the lot entitlement and liability schedule was not a change to the plan, but that argument was rejected. Similarly, the vendor’s argument that the amendment did not “materially affect” the lot was, not surprisingly, rejected. Pagone J. alluded to the loss of voting rights consequent upon the amendment, but the affect on insurance entitlement in the case of a combined building policy would also be a powerful reason to find material affectation.

Interestingly, the fact that the notification of the amendment and the purchaser’s avoidance was made after registration of the plan was not an issue. Section 9AC(1) does include the words ‘before the registration of the plan’ but presumably the vendor accepted that as notification came after registration of the plan, an attempt to limit the purchaser’s avoidance right to prior to registration would be doomed to fail. The interaction between s 9AC and s 10, which also creates an avoidance right but is limited to exercise prior to registration, is uncertain and legislative clarification of the purchaser’s rights in this regard is needed.

Tip Box

Whilst written for Victoria this article has interest and relevance for practitioners in all states.

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