JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA 
IN CHAMBERS 

CITATION	:	WALLACE -v- PERKINS [2009] WASC 154 

CORAM	:	TEMPLEMAN J 

HEARD	:	18 MAY 2009 

DELIVERED	:	2 JUNE 2009 

FILE NO/S	:	CIV 1082 of 2009 

BETWEEN	:	LILIANA WALLACE
First Plaintiff
 
RICCARDO RIZZI
Second Plaintiff
 
AND
 
DEBRA ANN PERKINS
First Defendant
 
REGISTRAR OF TITLES
Second Defendant 

Catchwords:
Costs - Absolute caveat protecting plaintiff as the holder of option to purchase land - Settlement of dispute over whether option could be exercised - Settlement included transfer of the land subject to a restrictive covenant - Defendant becomes registered proprietor of subject land - Defendant's efforts charge land so as to raise finance inhibited by the caveat - Defendant causes Registrar of Titles to serve notice under s 138B of Transfer of Land Act 1893 - Plaintiff applies to extend caveat - At hearing of application defendant informs court that finance can proceed without need to charge land - Hearing adjourned by agreement - Plaintiff claims entitlement to costs - Whether entitlement affected by delay - Whether caveat should be amended - Whether plaintiff unreasonably rejected settlement offer - Whether balance of convenience favours defendant 
Legislation:
Nil 
Result:
Caveat amended
Caveat in force until transfer or further orders
Liberty to apply for defendant
Defendant pay costs of this application 
Category:    B 

Representation:
Counsel:
First Plaintiff	:	Mr A Metaxas
Second Plaintiff	:	Mr A Metaxas
First Defendant	:	Mr D B Shaw
Second Defendant	:	No appearance 
Solicitors:
First Plaintiff	:	Metaxas & Hager
Second Plaintiff	:	Metaxas & Hager
First Defendant	:	DLA Phillips Fox
Second Defendant	:	No appearance 

Case(s) referred to in judgment(s):

Binningup Nominees Pty Ltd v Brogue Tableau Pty Ltd [2004] WASC 14
Brogue Tableau Pty Ltd v Binningup Nominees Pty Ltd (2007) 35 WAR 27
Custom Credit Corp Ltd v Chellaston Pty Ltd (Unreported, WASC, Library No 930340, 10 June 1993)
Deputy Commissioner of Taxation v Corwest Management Pty Ltd [1978] WAR 129
Kuper v Keywest Constructions Pty Ltd (1990) 3 WAR 419
Midland Brick Co Pty Ltd v Welsh (2006) 32 WAR 287; [2006] WASC 122
Navarac Pty Ltd v Moondancer Holdings Pty Ltd [2009] WASC 68
Porter v McDonald [1984] WAR 271

1	TEMPLEMAN J:  This is nominally, an application by the plaintiffs to extend the operation of a caveat over land of which the first defendant is the registered proprietor.  However, in reality, the application is being driven by the first defendant, who wishes to avoid an adverse costs order in circumstances to which I shall refer below.
2		The second defendant - the Registrar of Titles - has played no part in the proceedings.  It will therefore be convenient to refer to the first defendant as 'the defendant'.
The history of the application
3		The first plaintiff and the defendant are or were neighbours in Grove End Ridge, Mount Claremont.  They own lots 123 and 122 respectively.  Lot 122 includes a tennis court.  
4		The defendant is the successor in title to Robert Richardson Goodwin and Dianne Doreen Mary Goodwin (the Goodwins).  
5		In 1997, the Goodwins leased the tennis court land on lot 122 to the first plaintiff.  The lease granted the first plaintiff an option to purchase the tennis court land for one dollar.  
6		On 18 December 1998, the first plaintiff lodged a 'subject to claim' caveat over lot 122 to protect her interest as the grantee of the option contained in the lease.  
7		The defendant became the registered proprietor of lot 122 on 6 June 2003:  she took that land subject to the lease to the first plaintiff. 
8		On 5 June 2003, the day before the defendant was registered as proprietor of lot 122, the first plaintiff lodged an absolute caveat over lot 122.  The estate or interest being claimed by the caveat was:
As the holder of an option to purchase the land.
The interest claimed was said to have arisen by virtue of the lease between the Goodwins and the first plaintiff.  
9		I pause to note that the option was not, of course, to purchase 'the land' - that is, lot 122 - but only a portion of it.  However, nothing turns on that for present purposes.
10		The lease expired on 27 November 2005.  By cl 8.2 of the lease, the option was to be exercised within six months of the expiry date:  that is, by 27 May 2006.  However, on 23 November 2005, the defendant purported to terminate the lease for breach of an insurance obligation.
11		Despite that, the first plaintiff purported to exercise the option on 22 January 2006.  
12		This led to a dispute as to the first plaintiff's entitlement to exercise the option, and to an action in the Supreme Court:  CIV 1521 of 2006.
13		In May 2008, the action was settled.  The terms of settlement are contained in inter‑solicitor correspondence.  They include the transfer of the tennis court land by the defendant to the first plaintiff, subject to a restrictive covenant 'in accordance with the Lease'.  It was agreed also that the action would be discontinued, with no order as to costs.  However, a minute of consent order to that effect was not filed until 30 September 2008.  I consider this should be regarded as the true settlement date.  
14		The restrictive covenant was contained in cl 8.6 of the lease.  It provided that: 
The transfer effected pursuant to the exercise of the Option shall (to the extent permitted by law) contain a restrictive covenant whereby the use of the Property shall be restricted to a tennis court and/or children's play area.
15		The defendant's solicitors proposed that the parties prepare a joint brief to an independent solicitor, Mr Gregory Boyle, requesting him to draft the restrictive covenant.  However, it appears that neither side pursued that matter.  Nor, it seems, were steps taken to effect the subdivision of lot 122, so as to excise the tennis court land and transfer it to the first plaintiff.  
16		The explanation for the delay appears to be the first plaintiff's ill health.  In an affidavit sworn 2 February 2009 by the second plaintiff, who is the first plaintiff's brother, he deposed to the fact that the first plaintiff had been suffering from cancer and that 'about six months ago' - which I take to be August 2008 - the first plaintiff had been told that she would have only 24 months to live.  The first plaintiff, who lived in Bunbury, had been travelling regularly to Perth for chemotherapy, having started that treatment in about January 2008.
17		Further, the second plaintiff's evidence is that the plaintiffs' mother passed away on 23 August 2008 having been ill for about six months before her death:  and their father is also suffering from cancer and has required frequent treatment.  
18		In any event, on 3 November 2008, the second plaintiff became registered as the proprietor of lot 123, having purchased the property from the first plaintiff.  
19		On 18 November, the second plaintiff compiled 'a bundle of documents relating to lots 122 and 123' for his settlement agents.  However, because he was distracted by family matters, he did not deliver the papers until 22 December.  The settlement agent who had the conduct of the matter was then on holiday until 7 January 2009.
20		On 27 January 2009, the settlement agents wrote to the defendant's solicitors saying that they had prepared the necessary conveyancing documents, and were 'just waiting for the Restrictive Covenant wording from [the plaintiffs' solicitors] so we can finalize the documents'.
21		On 2 February 2009, the second plaintiff's then solicitors delivered a Transfer of Land document relating to the tennis court land to the defendant.
22		While these events were unfolding, the defendant sought to use lot 122 as security for a loan she was proposing to obtain from the National Australia Bank (NAB).  However, NAB would not accept a charge while the land was subject to the absolute caveat:  NAB was not concerned about the subject to claim caveat.  
23		The defendant therefore sought to have the absolute caveat removed.  She requested the Registrar of Titles to serve a notice on the first plaintiff, under s 138B of the Transfer of Land Act 1893 (WA).  The Registrar duly sent the notice on 29 December 2008.  
24		On 14 January 2009, in response to the notice, the plaintiffs issued their originating summons.  They sought orders extending the operation of the absolute caveat and payment of their costs of the application.
25		On 15 January, Newnes J made an order abridging the time for hearing of the plaintiffs' application and extending the caveat until further order.  Directions were given for the filing of affidavits by the defendant.  The application was adjourned to 29 January and costs were reserved.
26		On 29 January, the matter was adjourned to 3 February. 
27		On 3 February, the matter came again before Newnes J.  By then, the defendant's position was becoming urgent:  the remortgaging of lot 122 had to be effected by 11 March.  However, counsel for the defendant informed Newnes J that NAB was content to take a mortgage over the balance of lot 122, excluding the tennis court land.  
28		In those circumstances, Newnes J suggested that the matter might be settled on the basis that NAB would take a mortgage over the whole of lot 122 but would agree to the mortgage being 'lifted' to enable the tennis court land to be transferred away, following subdivision, when the mortgage would then 'resettle' on the remainder of lot 122 (ts 5).
29		The parties agreed in principle to this course.  The matter was therefore adjourned sine die with liberty to apply on 24 hours' written notice.  Costs were reserved.  
30		The defendant's solicitors then prepared a draft deed to give effect to the proposed agreement.  The plaintiffs' solicitors raised some objections to the deed which was revised and sent to the plaintiffs' solicitors on 27 February 2009, under cover of an email.  The defendant's solicitors said that the draft deed was to be sent to NAB for its consideration:  and the plaintiffs' solicitors would be informed on 2 March if the bank agreed.  
31		On 2 March, the plaintiffs' solicitors sent an email to the defendant's solicitors asking whether they had had a response from NAB but that:
In any event, my client will not agree to the deed proposed by your client.
That being so, the parties agreed to have the matter listed for hearing at 2.15 pm on 5 March.  It was assigned to Beech J.
32		However, the hearing did not proceed because on 3 March, the defendant found that she was able to achieve the proposed refinancing without needing to charge lot 122.  
33		Beech J was informed of this development on 4 March and made an order on the papers vacating the 5 March hearing.
34		The matter became before me on 13 May; as I understood it, for the question of costs to be resolved.  However, while counsel for the defendant had come prepared to argue the merits of the plaintiffs' application, counsel for the plaintiffs had not.
35		Counsel for the plaintiffs accepted - rightly in my view - that because his clients' application for an extension of the caveat remained extant, the defendant was entitled to oppose that application.  While both counsel expressed their willingness to advise their respective clients to have the application dismissed with no order as to costs, I was informed that the clients would not agree to such a course.  And so, the matter was listed for a substantive hearing on 18 May.  
36		Before setting out the rival contentions, I refer to s 138C of the Transfer of Land Act, which sets out the powers of the court in dealing with an application such as this.  It is as follows:
(1)	A caveator who is served with a notice under section 138B(1) may apply to the Supreme Court, in accordance with rules of the court, for an order extending the operation of the caveat.
(2)	On the hearing of an application under subsection (1), the Supreme Court -
(a)	if satisfied that the caveator’s claim has or may have substance -
(i)	may make an order extending the operation of the caveat for such period as is specified in the order;
(ii)	may make an order extending the operation of the caveat until the further order of the court; or
(iii)	may make such other orders as it thinks fit concerning the caveat or the land in respect of which the caveat was lodged;
(b)	if not satisfied that the caveator’s claim has or may have substance, shall dismiss the application; and
(c)	may make such ancillary orders in relation to the application as it thinks fit.
37		It is common, in applications of this kind, for issue to be joined on the question whether the caveator has a sufficient interest in the subject land to justify the existence of a caveat.  The court does not usually determine that issue on an application under s 138C.  The operation of the caveat will be extended if the caveator's claim 'has or may have substance'.  
38		It follows, that if the registered proprietor wishes to obtain an order that the caveat be removed, he will usually be required to demonstrate that the caveator's claim is entirely without substance.
39		The circumstances of the present case are somewhat unusual.  Having regard to the agreement reached in the settlement of the earlier action (CIV 1521 of 2006), there can be no doubt that the first plaintiff has a caveatable interest in lot 122.  The interest arises from the first plaintiff's right to specific performance of the settlement agreement.  The agreement, of course, relates only to the tennis court land.  However, until there is a subdivision and new title is issued following the excision of the tennis court land from lot 122, and its amalgamation with lot 123, it is appropriate for a caveat to be lodged over the land as a whole.  That is the case where, for example, there is a contract to purchase a strata‑titled unit in a building under construction:  see Kuper v Keywest Constructions Pty Ltd (1990) 3 WAR 419.
40		The provisions relating to the lodgement of caveats are contained in s 137 of the Transfer of Land Act, under which three types of caveat are available.  They are:
1.	an absolute caveat;
2.	a caveat forbidding registration of any transfer or instrument until after notice of the intended registration or dealing is given to the caveator; and
3.	a caveat forbidding registration etc unless the instrument sought to be registered is expressed to subject to the claim of the caveator.
41		See Binningup Nominees Pty Ltd v Brogue Tableau Pty Ltd [2004] WASC 14 [34].
42		An absolute caveat forbids the registration of any instrument affecting the estate or interest of the caveator in the subject land.
43		It is generally accepted that the purchaser under a specifically enforceable contract for the sale of land, who is the owner in equity of that land, is entitled to lodge an absolute caveat to protect his interest:  Brogue Tableau Pty Ltd v Binningup Nominees Pty Ltd (2007) 35 WAR 27 [42].
The plaintiffs' contention
44		In the present case, the plaintiffs contend that the first plaintiff is the owner in equity of the tennis court land and is entitled to maintain an absolute caveat in respect of lot 122.
45		The plaintiffs accept, as I understand it, that the second plaintiff has no caveatable interest.  The second plaintiff was not a party to the previous proceedings nor to the settlement agreement.  However, in my view, nothing turns on this.  In particular, the second plaintiff's involvement in this application has no adverse consequences for the defendant.  If the defendant was unsuccessful, I would order only one set of costs against her.  
46		Further, the plaintiffs accept that the caveat, to which I have referred above, is no longer in an appropriate form.  The first plaintiff can no longer claim her interest in the tennis court land as arising under the lease.  The agreement contained in the lease has now merged in the settlement agreement, which provides the basis for the caveatable interest.
47		Again, I do not regard this circumstance as being fatal to the plaintiffs' claim.  That is because, the court has power to amend a caveat.  The Full Court so decided in Porter v McDonald [1984] WAR 271, 275.  That was a decision given in respect of s 138 of the Transfer of Land Act.  However, in my view, the principle is equally applicable to s 138C(2)(a)(iii).  It was applied in Binningup Nominees (supra) [40] ‑ [42].
48		In essence, therefore, the plaintiffs' contention is that the first plaintiff is clearly entitled to an extension of the application of the caveat (or an amended caveat) to protect her interest in the tennis court land pending the subdivision and transfer of that land to her, or at her direction, to the second plaintiff.
The defendant's contention
49		The defendant opposes the plaintiffs' application on three grounds.  I deal with each in turn.
The caveat is not in proper form and should not be amended
50		As I have noted above, it is common ground that the caveat is not in a proper form.  Counsel for the defendant accepts that the court has jurisdiction to amend a caveat.  However, he submits that amendment should not be permitted in the present case because of the plaintiffs' delay in effecting a transfer of the tennis court land by the defendant.
51		Counsel relies on Custom Credit Corp Ltd v Chellaston Pty Ltd (Unreported, WASC, Library No 930340, 10 June 1993).  There, Anderson J held that the caveat in issue was irregular on its face and should be set aside.  His Honour said that if authority for that proposition was required, it might be found in Deputy Commissioner of Taxation v Corwest Management Pty Ltd [1978] WAR 129, 131.  His Honour went on to say:
However it is a rather technical reason, I suppose, in that by reformulation of the caveat the difficulty perhaps can be overcome.
52		His Honour then said that if the matter was to come back before him with a caveat which was regular on its face, but otherwise on the same facts:
I would still be very inclined to set aside the caveat on the ground that there has been ample opportunity since this action was first commenced in 1990 for the caveators to establish that they are entitled to claim an interest in this land and entitled to hold that interest against the exercise of the power of sale by Custom Credit Corporation Limited under its mortgage … 
A person cannot by alleging an interest in land and placing a caveat upon it forever prevent dealings in the land by persons claiming registered interests.  They must get on and establish to the satisfaction of the courts in fully tried actions that they do have that interest.
53		In the present case, counsel for the defendant accepts that the Chellaston case is distinguishable in that there, the delay was in establishing the interest claimed by the plaintiff as caveator.  Here, as I have noted above, there is no doubt about the existence of the first plaintiff's interest in the tennis court land.
54		Counsel submits that notwithstanding this distinction, the same principle applies.  I do not accept that submission.  In my view, once it is established that the caveator's interest arises under a specifically enforceable contract for the sale of the subject land (or a part of it which is yet to be subdivided), the only delay which would justify the removal of the caveat would be such a delay as to defeat a claim for specific performance.
55		I have referred above to the evidence of delay on the part of the plaintiffs down to January 2009.  There is evidence of further delay in the Titles office and in the Office of State Revenue (OSR).  
56		I accept the evidence of Catherine Geraldine Macoboy, a commercial lawyer employed by the plaintiffs' solicitors, that the subsequent delay is the result of changed practices at Landgate and the backlog in the OSR in the assessment of 'complex dealings' such as this.
57		I accept also that there is an issue as to which of the plaintiffs is the proper transferee of the tennis court land.  However, this can easily be resolved pending the outcome of the OSR's consideration of the matter. 
58		In my view, the delay is unlikely to be such as to disentitle the first plaintiff from obtaining specific performance of the settlement agreement.  However, it is neither necessary nor appropriate to determine that question in the present application.  That is because, as I have noted above, under s 138C(2)(b) I am required to dismiss the application only 'if not satisfied that the caveator's claim has or may have substance'.  Whether or not the delay in transferring the tennis court land from the defendant to the first plaintiff, or at her direction, is sufficient to deny the first plaintiff a decree of specific performance would require evidence as to the precise reasons for the delay and the nature and extent of any prejudice to the defendant.  That is because it is now generally accepted that mere delay will not defeat an equitable interest.
59		Counsel for the defendant submits that the delay between the settlement agreement being concluded - which on the view I take, was in September 2008 - and early March 2009 was prejudicial to the defendant, because her title to lot 122 was encumbered by the caveat, thereby preventing her from charging the land to secure borrowings.  
60		However, there was no actual prejudice because, as I have noted above, it transpired that lot 122 was not required for that purpose.
61		Put another way, I am far from satisfied that such delay or prejudice as there was, would have prevented the first plaintiff from obtaining a decree of specific performance.  It follows, that the first plaintiff's claim to the tennis court land, now has or, may have substance.
62		Further, there is no evidence to suggest that the continued presence of the caveat on the title to lot 122 is now causing any prejudice to the defendant.  I therefore see no reason to deny the first plaintiff the opportunity of amending her caveat pending the transfer of the tennis court land to her, or at her direction.
The absolute caveat was unnecessary:  the 'subject to claim' caveat would have been sufficient
63		As Hasluck J held in Midland Brick Co Pty Ltd v Welsh (2006) 32 WAR 287; [2006] WASC 122:
The rule is that the caveator may not lodge a caveat which goes beyond the legitimate claim necessary to protect the caveator's rights [342].
His Honour cited a number of authorities in support of that well established proposition.
64		In the present case, counsel for the defendant submits that the original subject to claim caveat (which remains on the title to lot 122) would have afforded sufficient protection for the first plaintiff who did not, therefore, need to lodge an absolute caveat.
65		At first sight, this appears to be an unsustainable proposition, given that the first plaintiff is the owner in equity of the tennis court land.  In my view, a 'subject to claim' caveat would not have protected the first plaintiff if, for example, the defendant had sought to grant a legal mortgage in respect of the whole of lot 122 on a valuation which included the tennis court land.  In those circumstances, the first plaintiff's equitable claim would have been defeated by the mortgagee's legal interest:  particularly, if the excision of the tennis court land would have resulted in an unacceptable diminution in the value of the mortgagee's security.
66		However, the submission by counsel for the defendant that the 'subject to claim' caveat would have been sufficient to protect the first plaintiff, arises from the circumstances of this case.  As counsel informed Newnes J at the hearing on 3 February 2009, NAB was 'fully aware' that the tennis court land was to be transferred to the first plaintiff and was not included in the valuation (ts 4).
67		No doubt for that reason, Newnes J proposed that the matter be settled on the basis to which I have referred above.  However, I note that his Honour said that he did not underestimate the need to draft a tripartite deed to which all parties (including the bank) agreed.  
68		I have referred also to the fact that the defendant's solicitors prepared a draft deed which they then revised, taking into account some concerns raised by the plaintiffs' solicitors:  and that, on 2 March 2009, the plaintiffs' solicitors said that their clients would not agree to the deed.  
69		Counsel for the defendant submits, in substance, that the revised deed should be regarded as an offer which the plaintiffs ought to have accepted:  and that by not doing so, they should be regarded as having acted unreasonably.  
70		The defendant relies on O 66 r 1(2) of the Rules of the Supreme Court 1971 (WA), which provides, so far as relevant:
If the Court is of opinion that the conduct of a party either before or after the commencement of the litigation or that a claim by a party for an unreasonably excessive amount has resulted in costs being unnecessarily or unreasonably incurred it may deprive that party of costs wholly or in part, and may further order him to pay the costs of an unsuccessful party either wholly or in part.
71		In order to determine whether the plaintiffs acted reasonably in rejecting the amended draft deed proffered by the defendant's solicitors, it is necessary to have regard to the terms of the deed.  It is to be found at exhibit DBS5 to the affidavit of David Brian Shaw sworn 8 May 2009.  
72		The deed recited the background facts.  These included a recital that the first plaintiff had agreed to assign the right to the transfer of the tennis court land to the second plaintiff:  and acknowledgments by NAB and the defendant that the second plaintiff was the owner of the subject land in equitable fee simple.
73		The operative provision of the deed contained an acknowledgement by the first plaintiff that she must sign a withdrawal of the caveat; an acknowledgement by the defendant that the second plaintiff was entitled to take the tennis court land free of encumbrance, including the proposed NAB mortgage, save for the restrictive covenant; and an acknowledgement that the second plaintiff was entitled to re‑lodge an absolute caveat over lot 122 after the proposed NAB mortgage had been registered, on the understanding that the caveat would be withdrawn once the tennis court land had been transferred to him.  The provisions contained also an acknowledgement by NAB that the second plaintiff was entitled to take the tennis court land free of any encumbrance, including the proposed NAB mortgage, other than the restrictive covenant.
74		The miscellaneous provisions contained in cl 6 of the draft deed included the following, under the heading 'Costs':
Each party must pay its own costs in relation to preparing, negotiating and executing this document.
75		As I have noted above, a person in the first plaintiff's position is generally entitled to lodge an absolute caveat on the title to land of which he is the equitable owner.  It will only be in unusual circumstances that a subject to claim caveat will afford the equitable owner sufficient protection of his interest.  I can see that there were unusual circumstances in this case, assuming NAB's willingness to cooperate in the way proposed by Newnes J.  However, in my view, the plaintiffs were entitled to maintain an absolute caveat unless and until NAB (which was not a party to the proceedings) executed a deed in the form referred to above.
76		Further, in my view, if the plaintiffs were to accept an offer of the kind proposed, they would have been entitled to their costs down to the date on which all parties to the proposed deed confirmed their willingness to execute it.  However, the draft deed made no provision for payment of the plaintiffs' costs.  In my view, therefore, the plaintiffs did not act unreasonably in rejecting it.
77		Counsel for the defendant submits that while the absolute caveat remains in place, the defendant is at the mercy of the second plaintiff.  Counsel said that even now, the defendant was willing to give an undertaking not to deal with lot 122, pending the transfer of the tennis court land.  
78		In my view, however, there would be no substantial difference between the defendant's position as it is now, and as it would be, were the caveat to be removed on the basis of an undertaking not to deal with lot 122.  There is no evidence that the defendant wishes to deal with lot 122 in the short term.  Therefore, an order extending the operation of the caveat until further order, with liberty to apply in changed circumstances, would cause no prejudice to the defendant.
The balance of convenience favours the defendant
79		Counsel for the defendant referred me to an article entitled Removal of a Valid Caveat‑How Convenient? (1996) 4 Australian Property Law Journal 1, by Sheryl Jackson who, I note, is the co‑author of a textbook on caveats.  
80		Ms Jackson expressed the view that:
There has been, and recent authorities to be discussed indicate that there remains, a degree of confusion in Western Australia as to the correct formulation by which balance of convenience may be considered upon an application for removal of a caveat.  It is submitted, however, that it is apparent from an analysis of the decisions of the Full Court of the Supreme Court of that State in Porter v McDonald [1984] WAR 271 and Custom Credit Corp Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42 that, pending further consideration of the issue by the Full Court in Western Australia, the balance of convenience will be a factor to be weighed in deciding whether a caveat ought to be removed even if a serious question to be tried has been shown, but not one which is in itself determinative (4 ‑ 5).
81		In Navarac Pty Ltd v Moondancer Holdings Pty Ltd [2009] WASC 68, I reviewed the authorities to which Ms Jackson referred in her article and reached the conclusion that she summarised in the paragraph referred to above.  However, my decision recently went on appeal to the Court of Appeal, which reserved its judgment.
82		If it be assumed for present purposes that the Court of Appeal decides that the balance of convenience is determinative in an application such as the present, I do not think such a result would assist the defendant.  That is because, in the circumstances as they are at present, the caveat does not appear to be causing any inconvenience to the defendant.
83		However, were the caveat to be removed, the first plaintiff would be subject to the risk against which the caveat now affords protection.  That is to say, it would be open to the defendant to (for example) grant a legal mortgage in respect of Lot 122, which would defeat the first plaintiff's equitable interest.  
84		Counsel for the defendant asserts that his client has no intention of so doing:  but, of course, her circumstances might change.
85		I therefore consider that the balance of convenience favours the plaintiffs.
Conclusion
86		For all these reasons, I conclude that I should make an order requiring the first plaintiff (at her cost) to amend the absolute caveat (no I506831) by withdrawing the present caveat and lodging a new caveat under s 138D of the Transfer of Land Act.  There should then be an order that the new caveat remain in place until the tennis court land is transferred to the first plaintiff or at her direction; or until further order in the meantime.  The defendant should have liberty to apply on 48 hours' written notice to vary or discharge this order.  The order should provide also that the defendant is to pay the costs of this application, including reserved costs, to be taxed if not agreed.