Binningup Nominees Pty Ltd As Trustee for The Lakewood Shores Unit Trust v Brogue Tableau Pty Ltd

[2004] WASC 14

Supreme Court of Western Australia

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Interrogate

Catchwords

1. Real Property
2. › Torrens system
3. › Caveat
4. › Caveatable interest
5. › Whether beneficiary of unit trust has proprietary interest sufficient to support caveat
6. › Transfer of Land Act 1893 (WA), s 137
1. Real Property
2. › Torrens system
3. › Caveat
4. › Form of caveat
5. › Absolute caveat
6. › Whether absolute caveat justified where trustee has powers of sale
7. › Whether court may amend caveat to notice caveat
8. › Transfer of Land Act 1893 (WA), ss 137, 138, 138C, 138D
1. Trusts
2. › Unit trusts
3. › Nature of unit holder's interest
4. › Whether unit holder has equitable proprietary interest in each asset of trust fund
5. › Whether interest extends through layered trust structures
1. Trusts
2. › Merger of legal and equitable interests
3. › Whether trust exists where trustee is sole beneficiary

Quick Take

A unit holder in a unit trust has a caveatable interest in land held as part of the trust fund, notwithstanding the contrary view expressed in Evindon v Ambasax. However, only a notice caveat (not an absolute caveat) is appropriate where the trustee has powers of sale that can overreach the beneficiary's interest. Trust deed drafters can prevent unit holders from lodging caveats by including an express prohibition in the deed.