The caveat extension part of the dispute was decided in Brose v Slade [2022] NSWSC 1785 .
Bruce was the proprietor of 3 of the properties and IJAAMOTT Pty Ltd the other blocks. IJAAMOT was the trustee of the self-managed super fund of Bruce and Donna and was controlled by them.
Kellie and Garreth claimed that the properties were held in trust for them in part because of a Deed of Family Arrangement that the family members entered into on 13 June 2019.
The deed contemplated that by 2026 Bruce and Donna would have retired and Kellie and Garreth would have taken ownership of all of the farming properties.
On an application for an extension of a caveat the court must be satisfied that the plaintiff has provided security that will protect the property owner from loss if it is found at a final hearing that the caveat should not have been extended. In this case Kellie and Garreth offered a charge over land that they owned. This was accepted by the court as adequate security when extending the caveats.
Bruce and Donna argued that the caveats should not be extended and that they should be permitted to finalise the sales of the properties that they had negotiated for $10.1 million.
On the basis of the Deed of Family Arrangement the court held that Kellie and Garreth had established that they had an arguable case that the land was held on trust for them and that in respect of the IJAAMOT land, that Kellie and Garreth should be given leave to lodge a new caveat, claiming that the super fund was knowingly involved in the breach of trust of Bruce and Donna. Finally, in circumstances where Kellie and Garreth had provided a meaningful undertaking for damages, the caveats should be extended.
Bruce and Donna argued that the caveats should not be extended because the partnership set up as part of the family arrangement had been terminated and the transfer of the properties envisioned by the Deed of Family Arrangement was not possible.
The deed provided that the land should be acquired by Kellie and Garreth on “fair terms”. These terms had never been specified and none had been offered since the commencement of the dispute.
ruce and Donna, as part of their defence argued that the Deed of Family Arrangement was an aspirational document and was unenforceable. Kellie and Garreth’s argument was that the arrangement in the family was real and that they had done everything required of them under the family arrangement, including relocating from North Queensland to work on the family farms and were entitled to the land as part of the arrangement.
The caveats were extended and the final argument as to the entitlement of Kellie and Garreth will proceed in the court list.
