Background
Amal Trustees Limited held a registered mortgage over two adjacent lots at Caloundra on the Sunshine Coast. In April 2025, Matthew Joiner was appointed as Amal’s agent to exercise the mortgagee’s power of sale. Joiner first contracted to sell the property to Ruby 3.10 Pty Ltd in October 2025 for $2,850,000, with settlement due by 19 February 2026. When Ruby failed to settle on that date, Joiner purported to terminate the Ruby contract and, the following day, entered into a new contract for the same price with Reliance Developments Sunshine Coast Pty Ltd. That contract was expressed to be conditional upon the valid termination of the Ruby contract.
Ruby disputed the validity of its termination, commenced proceedings for specific performance in March 2026, and lodged a caveat over the property. Ruby’s caveat subsequently lapsed in late May 2026 when Ruby failed to notify the Registrar of its proceedings within the three-month window required by s 126(4)(b) of the Land Title Act 1994 (Qld). Before it lapsed, however, Joiner relied on that caveat as the basis to purportedly terminate the Reliance contract on 6 May 2026 — the extended settlement date — invoking Special Condition 10.2, which permitted the vendor to terminate if, “for any reason,” it was unable to provide a transfer capable of immediate registration.
Reliance rejected the termination, affirmed its contract, deposited the full purchase price (totalling $3.86 million, over $1 million above the contract price) into its solicitors’ trust account, and commenced proceedings for specific performance. It also lodged its own caveat to protect its equitable interest as purchaser. Joiner then applied under s 127 of the Land Title Act to have Reliance’s caveat removed, conceding in argument that if the caveat were lifted, it would promptly settle with Ruby instead.
The Court’s Holding
Morrison J dismissed the application and ordered Joiner to pay Reliance’s costs. On the threshold question, the Court found that Reliance had demonstrated a serious question to be tried. Joiner argued that Special Condition 10.2 was “absolute in nature” and unconditionally entitled the vendor to terminate whenever a caveat prevented registration. The Court rejected this at the interlocutory stage. The non-objection clause in Special Condition 10.7 — which prevented the buyer from “Object[ing]” to matters under cl 10 — was defined to cover only buyer-side actions aimed at avoiding or diminishing the contract (refusing to settle, claiming compensation, seeking an injunction). A buyer insisting on the full benefit of the contract fell outside that definition and was therefore not caught by the clause.
Critically, the Court held that Special Condition 10.2 itself gave the vendor a choice: terminate or extend the settlement date until the obstacle was removed. Only termination destroyed Reliance’s contractual rights; extension preserved them. The contract provided no guidance on which option to choose. In those circumstances, the Court found it was at least arguable that an implied duty of cooperation required Joiner to extend rather than terminate — particularly given that extension was available and Ruby’s caveat had already lapsed by the time the application was heard. The Court also noted that, because Ruby’s proceedings challenging the validity of its own termination remained on foot, the question of whether Reliance held a valid (and potentially superior) equitable interest could not be resolved at this stage.
On the balance of convenience, the Court held this was straightforward. Removal of the caveat would, by Joiner’s own concession, result in an immediate sale to Ruby and permanent destruction of Reliance’s equitable interest in the property. Citing Buchanan v Crown and Gleeson Business Finance Pty Ltd [2006] NSWSC 1465 and Custom Credit Corporation Limited v Ravi Nominees Pty Ltd (1992) 8 WAR 42, the Court reiterated that interlocutory removal of a valid caveat is a rare step, and where removal would in practice destroy the caveator’s proprietary interest, it ought not be countenanced. Reliance’s undertaking as to damages was adequately secured by the $3.86 million already held in trust.
Key Takeaways
- A vendor’s contractual right to terminate “for any reason” when unable to deliver a registrable transfer is not necessarily absolute at the interlocutory stage: where the same clause offers the alternative of extending the settlement date, an implied duty of cooperation may require the vendor to choose the option that preserves the purchaser’s benefit rather than extinguish it.
- A non-objection or “entire agreement” clause that is limited in its defined scope will not automatically exclude implied terms — whether such a clause bars implication depends on the clause’s precise terms and the nature of the term alleged.
- The balance of convenience in caveat removal applications will almost always favour the caveator where removal would have the practical effect of destroying, rather than merely deferring, the caveator’s equitable interest in the land.
- An undertaking as to damages is bolstered — and a challenge to its sufficiency answered — where the caveator has placed the full purchase price (and more) in solicitors’ trust pending resolution of the dispute.
- Where competing equitable claims to the same property are being litigated concurrently, a court will not attempt to determine the priority question at the interlocutory caveat-removal stage.
Why It Matters
This decision is a useful reminder for conveyancing practitioners and mortgagee-vendors that broadly worded contractual termination rights — especially those triggered by the existence of a third-party caveat — may not operate as freely as they appear. Where a contract gives the vendor a choice between termination and extension, the selection of termination (particularly when it serves the vendor’s preference to deal with a different buyer) may be vulnerable to challenge on implied-duty-of-cooperation grounds. The case reinforces the Queensland Court’s consistent approach that vendor-side tactics designed to side-step an existing purchaser by preferring an earlier or later buyer will face close scrutiny.
For attorneys advising purchasers whose contracts are threatened by mortgagee-vendors, Reliance Developments v Joiner demonstrates the practical value of lodging a caveat promptly after a disputed termination and depositing purchase funds in trust: both steps were decisive in defeating this removal application. The decision also illustrates how a competing caveator’s procedural failure — Ruby’s non-compliance with the s 126(4)(b) notification requirement — can reshape the landscape of a multi-party property dispute, here removing one layer of uncertainty while another (the validity of Ruby’s original termination) remains unresolved.