FEDERAL COURT OF AUSTRALIA
MEGISTI PROTEUS NEPA
MEGISTI IRIS NEPA
MEGISTI NEMESIS NEPA
DATE OF ORDER:
THE COURT ORDERS THAT:
1. It is declared under s 47B(2) and (3) of the Shipping Registration Act 1981 (Cth) that the caveat lodged by the respondents on 9 August 2019 with respect to the MY Hunter, ON 861474, and entered in the Australian General Shipping Register on 12 August 2019 should be removed and that it has no force.
2. The respondents shall forthwith withdraw the caveat referred to in Order 1.
3. The respondents are to pay the applicant’s costs of the application to date.
4. The relief sought by the applicant under s 47E of the Shipping Registration Act 1981 (Cth) in paragraphs 1 and 4 of the originating application filed on 22 August 2019 is to be heard separately from the other relief sought by the applicant and is stood over for case management and later determination.
5. The matter be listed for a case management hearing on Thursday 10 October 2019 at 9:30am.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
1 The motor yacht Hunter is registered on the Australian General Shipping Register in the name of the applicant. Hunter is luxuriously appointed. She was built in 2004 by Falcon Yachts in Italy, and was refitted in 2016 with a focus on preparing her for the charter market. She has a length overall of 34.8m, a gross tonnage of 192mt, a cruising speed of 24 knots and accommodation for 12 guests. She is currently berthed in Rose Bay, Sydney.
2 By an originating application filed on 22 August 2019, the applicant has summoned the respondents, under s 47B(2) of the Shipping Registration Act 1981, to show cause why a caveat lodged by them on 9 August 2019 and entered on the Australian General Shipping Register against Hunter should not be removed. The applicant seeks orders for the removal of the caveat and ancillary relief for compensation under s 47E of the Act. It was accepted on both sides that the relief under s 47E should be decided separately and subsequently, in particular because unlike the relief sought in relation to the removal of the caveat, there is no urgency attendant on that relief.
3 Hunter was previously named Proteus and registered to the second respondent on the Hellenic Register of Shipping.
4 The applicant has been registered as the owner of Hunter (then still named Proteus) since 3 August 2015 when a provisional registration was made on the register under Official Number (ON) 861474. That registration but under her new and current name was made final on 31 October 2016.
5 On 9 August 2019, the respondents lodged a caveat under s 47A(1) of the Act which was entered on the register by the registrar of ships on 12 August 2019. The caveat forbids the entry in the register of any instrument relating to any dealing with Hunter until after notice of the intended dealing to the respondents as caveators. The interest claimed by the respondents in the caveat is described as “beneficial owners”.
6 On 9 August 2019, the same day that the caveat was lodged, the applicant entered into a contract of sale for the vessel with a purchase price of AU$4,840,000. Settlement under that contract was scheduled for 15 August 2019, but it was postponed by agreement between the parties to the sale contract until 9 September 2019 pending removal of the caveat. If the caveat is not removed on or before that date, the purchaser is entitled to terminate the sale contract and be repaid the 30% deposit that has been paid to the broker.
7 Those circumstances give rise to significant urgency in the matter, a judgment being required sufficiently in advance of 9 September 2019 to enable the parties to act on it as they may be advised.
8 The applicant has been actively seeking a buyer for Hunter since about May 2016. Loss of the present sale may mean that no new sale is concluded for a long time, and in the meantime the applicant continues to bear considerable holding costs. There is also the risk that only a lower price will be able to be achieved in any future sale.
9 The respondents seek to justify the caveat on the following grounds, which are accordingly the principal issues to be decided.
10 First, they say that under a deed of indemnity “completion” (as defined in the deed) has not occurred with the result that under that deed the applicant holds Hunter in trust for the respondents. The respondents say that “completion” has not occurred on a number of different bases, viz.:
The applicant is estopped from denying that completion has not occurred;
One of the vessels that is the subject of the definition of “completion” in the deed of indemnity, the MY Iris, remains on the Hellenic Register of Shipping whereas completion requires the transfer of title of four vessels including Iris; and
Title to all four vessels that are the subject of the definition of “completion” in the deed of indemnity is encumbered to the Greek tax authorities whereas completion requires the transfer of unencumbered title.
11 Second, the respondents say that even if “completion” has occurred, they retain a proprietary claim against Hunter on a number of different bases, viz.:
As trustees to enable them to meet Greek tax obligations accrued from the operation of the four vessels in Greece;
As parties accountable to the Greek State for the taxes under a Government charge over, inter alia, Hunter where the applicant and associated parties, so the respondents say, cannot rely on their unlawful acts in having removed Iris and the three other yachts including Hunter from the Greek jurisdiction, and where the applicant and associated parties fraudulently removed all four yachts from the Greek jurisdiction in order to defeat the charges of the Greek State; and
Arising from their right to terminate the deed of indemnity.
The applicable test
12 The Act provides for the registration of ships in Australia in one of two registers, the Australian General Shipping Register and the Australian International Shipping Register. It is the former that is relevant in this case.
13 Part III of the Act contains the provisions relevant to the entry of caveats on either register. In Part III, “ship” means a registered ship (s 34).
14 Section 47A(1) of the Act provides that a person “claiming an interest in a ship … under any unregistered instrument, or by operation of law or otherwise, may lodge with the registrar of ships a caveat in accordance with the approved form forbidding the entry in the relevant register of any instrument relating to any dealing with that ship or share until after notice of the intended dealing is given to the caveator”. It is significant that it is the “claiming” of an interest in a ship that justifies the lodging of a caveat, and that the type of interest that may be the subject of such a claim is expressed broadly enough to encompass the equitable interests that the respondents assert in this case. That much was common ground.
15 Section 47B(1)(a) requires that upon entry in the relevant register of a caveat, the registrar shall notify particulars of the caveat to the person entered in the relevant register as the owner of the ship. Section 47B(2) then provides that any person so notified, or required to be notified, may “summon the caveator to attend before the Supreme Court of a State or Territory to show cause why the caveat should not be removed”. Section 47B(3) provides that upon proof that the caveator has been summoned, the court may make such order, either ex parte or otherwise, “as the Court thinks fit”.
16 Although s 47B speaks of a “Supreme Court of a State or Territory”, this Court also has jurisdiction to grant relief in relation to disputes about entries in the register, including the removal of a caveat, pursuant to s 39B(1A)(c) of the Judiciary Act 1903 (Cth) as a matter arising under a law of the Parliament: Mentink v Registrar of Australian Register of Ships  FCAFC 150; 234 FCR 458 at  per Rares, Logan and Mckerracher JJ; Chevron Australia Pty Ltd v Registrar of the Australian Register of Ships  FCA 265 at  per Greenwood J; and Adsteam Harbour Pty Ltd v Registrar of the Australian Register of Ships  FCA 1324 at - per Allsop J.
17 Section 47C of the Act provides that a caveat shall be deemed to have lapsed upon the expiration of 14 days after notice is given to the caveator that the person entered in the register as the owner of the ship has applied for the registration of any dealing with the ship. Section 47C is not subject to s 47B from which it is apparent that the provision for the lapsing of the caveat under s 47C applies whether or not the caveator has been summoned to show cause why the caveat should not be removed under s 47B(2). That is to say, if an owner challenges a caveat by the procedure provided for in s 47B and fails such that the caveat remains entered on the register, and the owner then applies to register a dealing with the ship, the caveat will in any event lapse after 14 days unless a court makes an order to the contrary.
18 Thus, it is apparent that the determination that the court makes under s 47B(3) is not a final determination of the rights said to justify the caveat. It must be some lesser threshold of determination that applies.
19 Section 47D(1) provides that so long as a caveat remains in force in respect of the ship, the registrar shall not, except with the consent in writing of a person entitled to withdraw the caveat, enter in the relevant register particulars of any dealing with that ship. The person who lodged the caveat for entry on the register, or their authorised solicitor or agent, may withdraw a caveat (s 47A(6)(1)).
20 Section 47E provides that a person who lodges a caveat with the registrar “without reasonable cause” is liable to pay to a person who has sustained damage thereby such compensation as is just.
21 The scheme of the caveat provisions is thus that the caveat operates similarly to an interim ex parte injunction preventing the entry in the relevant register of any dealing in relation to the ship (s 47D(1)). Notice of the caveat must however be given to the owner (s 47B(1)), which enables it then to have the justification for the caveat tested by summoning the caveator to court to show cause why the caveat should not be removed (s 47B(2)). But whether or not the caveator is summoned in this way, and even if it is so summoned and the caveat is not required to be removed pursuant to any order that the court may make under s 47B(3), the caveat will lapse 14 days after an application for the registration of any dealing with the ship is made unless a court orders to the contrary (s 47C). This has the effect of placing the caveator on urgent terms to enforce the rights that it asserts justify the caveat which rights will then be finally determined. In a proper case, a court will presumably by injunction or other equitable relief preserve the operation of the caveat to enable the final determination of those rights.
22 The provisions in relation to caveats, namely ss 47A to 47E, were introduced into the Act by s 18 of the Shipping Registration Amendment Act 1984 (Cth). The Explanatory Memorandum to the Shipping Registration Amendment Bill 1984 (Cth), which is the Bill that led to the Amendment Act, stated as follows (at 2) in relation to caveats:
A number of other changes of a minor nature are to be made, the most important of which is in the introduction of a system of caveats into the legislation for the first time. Under this system, which is widely used in legislation on land titles, a person who has an interest in a ship or share can lodge a caveat with the Registrar. This prevents, for a strictly limited time, the registration of a dealing with the ship or share which might affect that interest. It gives the caveator time to take whatever steps might be necessary, including legal action, to protect his interest.
23 It is apparent from this that Parliament had in mind the system of caveats applicable to the registration of real property under the Torrens system as an analogous system. On that basis, there is some justification for drawing on the judge-made law in relation to Torrens system caveats in determining the applicable test at the interim stage where a caveator has been called upon under s 47B(2) of the Act to show cause why the caveat should not be removed: SZTAL v Minister for Immigration  HCA 34; 262 CLR 362 at - per Kiefel CJ, Nettle and Gordon JJ.
24 In respect of caveats under the Torrens system, it is well-established that the maintenance of a caveat involves considering whether there is a serious question to be tried as to the existence of the relevant interest supporting the caveat and whether the balance of convenience favours its maintenance: Hanson Construction Materials Pty Ltd v Roberts  NSWCA 240; 93 NSWLR 1 at 16-17 per Sackville AJA, Beazley P and Payne JA agreeing; Cousins Securities Pty Ltd v CEC Group Ltd  QCA 192; 2 Qd R 520 at  per Holmes JA, McMurdo P and Mackenzie J agreeing; Lawrence & Hanson Group Pty Ltd v Young  VSCA 172 at  per Redlich and Kyrou JJA, Keogh AJA; Pattinson v Woodford  WASCA 227 at - per Buss P and Murphy and Beech JJA.
25 It is consistent with the scheme of the caveat provisions in the Act to apply the same approach. It is the approach adopted in Tuna Tasmania Pty Ltd v Allison  TASSC 4 at  by Cox CJ, albeit on the acceptance of counsel on both sides.
26 The research of counsel in the present case has turned up only one other case of a challenge to a caveat under s 47B(2). There is a first instance decision and then a decision granting leave to appeal: Hill Samuel Australia Ltd v Habla Consolidated Pty Ltd  VicSC 59 (unreported, Supreme Court of Victoria, Kaye J, 4 March 1986) and Hill Samuel Australia Ltd v Habla Consolidated Pty Ltd,  VicSC 143 (unreported, Supreme Court of Victoria, Murphy J, 21 April 1986). Neither judgment deals in terms with the applicable test, although both hold that the onus rests on the caveator to justify the caveat. That the onus is borne by the caveator accords with the requirement that it is the caveator who must “show cause” under s 47B(2) of the Act. That much was accepted by the respondents in the present case.
27 I accordingly conclude that s 47B(2) has the effect of requiring the caveator to establish a serious question to be tried in relation to the interest that it asserts to justify the caveat and that the balance of convenience favours the maintenance of the caveat. Establishing a serious question to be tried requires the caveator to make out a prima facie case in the sense that if the evidence remains as it is there is a probability that at the trial of the action the caveator will be held entitled to relief. Or, put differently, the caveator must show a sufficient likelihood of success in establishing the interest that it asserts: Australian Broadcasting Corporation v O’Neill  HCA 46; 227 CLR 57 at  per Gummow and Hayne JJ, Gleeson CJ and Crennan J agreeing at .
28 The respondents read an affidavit of John Michael Barbouttis. The applicant read two affidavits of James Michael Thompson and one of Heather Lindsay Sandell, the applicant’s solicitor. No deponent was required for cross-examination, which was appropriate given the level of the test to be applied. In doing so, clearly neither side was accepting the evidence of the other without reservation or disagreement. Also, in my treatment of the evidence below I do not intend to make any final findings of fact. The preliminary nature of the task that I am engaged in precludes that.
29 Mr Barbouttis’s evidence of the events up to 1 May 2015 may fairly be summarised as follows.
30 Mr Barbouttis is a solicitor, having been admitted in New South Wales in 1978. He is a sole practitioner, and has been for many years.
31 Between 2007 and 2015, Mr Barbouttis was closely involved in the business affairs of what he describes as the “Neil Sutton group of companies” – as solicitor on retainer, later as employee and as friend and adviser to Neil Sutton. One of those companies, of which Mr Barbouttis was a director, is Enares Pty Ltd. The applicant in the present proceeding is a subsidiary of Enares and is accordingly in the Sutton group.
32 A venture that Mr Barbouttis was involved with on behalf of the Sutton group was to purchase pleasure yachts in Greece, of which Hunter was one. On the advice of a Greek shipping and tax lawyer, the yachts were purchased into NEPA companies. NEPA is the acronym for the Greek words for Maritime Company for Pleasure Yachts. The advice that was received was that the shareholders of NEPA companies must be Greek or EU citizens holding more than 50% of the ownership of the yachts. As Mr Barbouttis is a dual Greek/Australian citizen, the Sutton group could take advantage of owning the yachts through the NEPA companies by Mr Barbouttis’s nominee shareholding.
33 Also, the management of a yacht through a NEPA company in Greece gains significant tax and financial advantages. There must be a minimum of three representatives, being the Greek equivalent of company directors. Thus, a Greek management company was also established with three Greek directors appointed by the Sutton group, namely Mr Barbouttis, his brother George and Mr Takis Nikiforides. The management company was Megisti Blue Yacht Charters Ltd. I was told from the Bar table that that is the same company as one of the caveators which was misdescribed on the caveat as “Megisti Yacht Charters Ltd” and which has hence been named as the first respondent with the same misdescription.
34 The shares in Megisti Blue were owned as to 25% by Mr Barbouttis, 25% by George, 25% by George Panagakos and 25% by Takis Nikiforides. Later, Panagakos transferred his shareholding to his wife.
35 Iris (now known as Iris 1) and Proteus (now known as Hunter) were purchased in 2009 in a single purchase for €6 million and registered in the names of the newly formed NEPA companies, Megisti Iris NEPA and Megisti Proteus NEPA respectively. Nemesis was purchased later in the same year for €205,000 and registered in the name of Megisti Nemesis NEPA. The shares in the NEPA companies were owned as to 75% by Mr Barbouttis, and 25% by George. The three directors of the NEPA companiess, as with Megisti Blue, were Mr Barbouttis, George and Mr Nikiforides.
36 A fourth far smaller (9m) yacht, described as a Sirocco yacht and built in China, was also purchased but it was held in the name of Mr Barbouttis himself.
37 All of the purchases were done on the instructions of Neil Sutton utilising funds provided by the Sutton group. More specifically, Mr Barbouttis in a “background paper” he prepared in 2014 for Neil Sutton and Mr Thompson who was a senior manager in the Sutton group (and who is the deponent to the applicant’s affidavits), stated that the Enares assets in Greece were the three NEPA companies, 50% of the shares in Megisti Blue (being those in the names of him and George) and the Sirocco yacht. He also stated that these assets were held beneficially for Enares.
38 The three yachts that were owned by the NEPA companies were traded under the management of Megisti Blue, with the operation as a whole being overseen by Mr Barbouttis. From 1 January 2010 to 31 December 2014, Mr Barbouttis worked under an employment contract with the Sutton group.
39 Over a period of time, perhaps in 2013 or 2014, the relationship between Mr Barbouttis and Neil Sutton began to cool. Mr Barbouttis attributes that to the increasing influence of Mr Thompson on Neil Sutton and his son Scott. The cause of the change in the relationship does not matter for present purposes.
40 The point is, in about August 2014, Mr Barbouttis learnt that the Sutton group was investigating sending at least Nemesis to Australia.
41 It was submitted on behalf of the respondents that the attempt to remove Nemesis to Australia was done “behind Mr Barbouttis’s back” and as a “trick”, but that is not borne out by what Mr Barbouttis says in his affidavit or by the tendered documents. Mr Barbouttis may not initially have known of the plan, but his “background paper” in “late 2014” shows that he was fully aware, at least at that time, of the intention of closing down the Greek yacht charter business and removing the three NEPA yachts from Greece.
42 Further, Mr Barbouttis deposes to a meeting in mid-March 2015 with Neil Sutton, Kel Fitzalan of PwC Sydney (a tax advisor to the Sutton group), George and himself where it was decided that he and Mr Fitzalan would go to Greece to arrange to close the businesses down and “bring the boats back”.
43 Mr Barbouttis had written in advance of the meeting recording his and George’s position as “remaining the same”, thereby implying that it had earlier been expressed, namely:
Provided we are effectively indemnified for all liabilities, the boats thereafter can be moved to Neil’s order.
44 One of the difficulties that arose at about the time that Neil Sutton apparently resolved to close down the chartering business was a tax audit by, and tax liabilities to, the Greek tax authorities. Both Mr Barbouttis and George faced potential personal liability for any outstanding tax obligations of the Greek companies of which they were directors. Further, the removal of the yachts from Greece would give rise to further tax obligations which, if not met, would be visited upon Mr Barbouttis and George.
45 It is in that context that Mr Barbouttis spoke of him and George requiring an indemnity. The first draft was prepared by Mr Fitzalan, and negotiations ensued as to its terms.
46 In March 2015, in an email to his “legal adviser” in which he sought advice on a draft of the indemnity, Mr Barbouttis explained that Enares had lent the funds to capitalise the companies to purchase the boats and, upon sale of the boats to Neil Sutton or one of his companies, there would have to be mutual debt forgiveness, the intent being that the initial purchase price and loan would be equal to the sale price, so there is debt forgiveness on both sides.
47 Ultimately, a suite of agreements was concluded in order to document and bring about an end to the Greek yacht chartering operation. Mr Barboutti’s affidavit does not mention the conclusion of the agreements. I take what follows from the documents tendered by the applicant.
48 Bills of sale, each dated 9 April 2015 and signed by Mr Barbouttis for the transferors, recorded the sale and transfer of Proteus (now Hunter), Iris and Nemesis from the respective owning NEPA company to the applicant. Each bill of sale records the purchase price.
49 There is also a bill of sale, this time dated 11 May 2015 (i.e. after the agreements referred to below), recording the sale and transfer of a vessel named Megisti Blue (which I understand to be the Sirocco yacht – it has the same dimensions) from Mr Barbouttis to the applicant.
50 There are promissory notes, all dated 1 May 2015 and corresponding with the purchase price of each yacht as recorded in the bills of sale, issued by the applicant to the NEPA company owners of the yachts, but endorsed first to Mr Barbouttis and then by him to Motor Yacht Charters Sydney Pty Ltd (MYCS), another Enares subsidiary. Thus, the purchase price in each case was paid by an Enares company and ultimately returned to an Enares company.
51 That is explained by deeds of restatement of loan and deeds of forgiveness of debt, all dated 1 May 2015.
52 First, there is a deed of restatement of loan between MYCS, as lender, and Mr Barbouttis and George, as borrowers. It records that on or about 12 December 2009, the parties entered into an oral agreement whereby MYCS would loan the principal sum of €6,220,000 to Mr Barbouttis and George. It records that the principal sum was advanced and that the deed records the terms of the oral agreement. The principal sum accords with the purchase price of the first two yachts.
53 It is recorded that the loan is interest free and that repayments will be made by way of any dividends or other distributions payable to the borrowers by each of the NEPA companies. Aside from repayments in that way, it recorded that the borrowers were not required to make any additional payments or repayments to the outstanding balance on the principal sum.
54 Second, there is a deed of forgiveness of debt between MYCS, as releasor, and Mr Barbouttis and George. It releases the borrowers under the deed of restatement of loan (i.e. Mr Barbouttis and George) from their obligations to repay the principal debt and terminates the deed of restatement of loan “on and from Completion”. “Completion” has the same meaning as given in the deed of indemnity which I will deal with shortly. The point is that at that particular point in time, i.e. when completion occurs, the indemnities and releases under the deed of indemnity would arise, and the debt under the deed of restatement of loan would be forgiven and the deed of restatement of loan would terminate.
55 Third, there are deeds of restatement of loan between each NEPA company, as lender, and Megisti Blue, as borrower. Each states that on or about 1 April 2009, the parties entered into an oral agreement whereby the lender agreed to advance amounts from time to time to the borrower. It then records that various amounts were advanced and that the deed records the terms of the oral agreement. The term of each deed of restatement of loan is the period of 10 years commencing on 1 April 2009 (i.e. ending on 31 March 2019, which now is in the past) and provides that the repayment date is the last day of the term. It records that the lender has advanced funds to the borrower from time to time, that the loan is unsecured and that it is interest free. It provides that the borrower must repay all amounts advanced to it by the lender on the repayment date.
56 Fourth, there is a corresponding deed of forgiveness of debt between each NEPA company and Megisti Blue which forgives the debt recorded in the deed of restatement of loan. The deed of forgiveness of debt in each case records that the release is conditional upon “completion” taking place, and again “completion” is given the same meaning as in the deed of indemnity. Thus, from that date, the indebtedness recorded in each deed of restatement of loan by Megisti Blue to each NEPA is forgiven.
57 There are similar restatement of loan, promissory notes and deed of forgiveness of debt in respect of the Sirocco boat.
58 Fifth, there is the deed of indemnity. It has 15 parties, which can be divided into Enares group entities and indemnified parties. The former include Enares, MYCS and the applicant. The latter include Mr Barbouttis and George, as well as each of the NEPA companies and Megisti Blue.
59 The deed of indemnity records that each NEPA company owns its respective vessel and that each intends to transfer that vessel from the relevant NEPA company to Enares. There is a sunset date, which is defined as being three calendar months from the date of the deed or such later date as determined by the operation of clause 2.2. Reference to that clause shows that the sunset date can be extended for a reasonable period if it is required in order to achieve completion, but that the sunset date may not be extended beyond six calendar months from the date of the deed. That means, at the latest, the sunset date was 1 November 2015.
60 As will be seen, that is relevant only in as much as one of the justifications that the respondents advance for the caveat is that they have a right to terminate the deed of indemnity. To the extent that it is said that that right arises under cl 2.4(i), it ended within seven business days of the sunset date, which is to say 8 November 2015 at the latest. I will return below to deal with the other expressed grounds for termination.
61 The indemnity granted under the deed of indemnity by the Enares group to the indemnified parties is conditional upon “completion” taking place but is not otherwise subject to any condition before the indemnity has full and unrestricted effect (cl 2.1).
62 The indemnity in cl 3.1 is that on and from completion each of the Enares group entities, releases and indemnifies the NEPA companies and Megisti Blue and holds them indemnified to the extent that they, or any of them, become liable for any tax liabilities, operating costs, various specified claims and expenses and “any other liabilities, present or future Claim … no matter how arising or having arisen or occurring…”. Consistent with that broad wording, “claim” is defined as meaning any claim, and includes, without limitation, any demand, determination, award, judgment, notice, hearing, enquiry or proceeding of any kind, no matter where made, given, initiated or held.
63 Clause 4.1 gives a similar release and indemnity to Mr Barbouttis and George.
64 There are provisions of clause 2.4 which are particularly pertinent and therefore require being quoted:
2.4 Sunset Date, Termination and Unwinding
(i) If the Condition is not satisfied or waived by the Sunset Date and provided that the party giving notice has substantially complied with its obligations under clause 2.2, any party may terminate this Deed by written notice to the other parties within 7 Business Days of the Sunset Date.
(ii) In the event that such notice is given, all parties will be obliged, at the cost of Enares, to reverse all the steps identified in the definition of Completion so as to restore full title and possession of each of the Yachts to their previous owner.
(iii) To the extent to which a transfer of title or possession of any of the Yachts has occurred prior to Completion, Enares Group shall hold that title and possession of and the Yachts in trust for the Megisti Entities until Completion shall have occurred and shall if required at any time prior to Completion immediately reconvey title and possession and the Yachts to the Megisti Entities.
65 The definition of completion is as follows:
Completion means the transfer of the title of the transferor of:
(i) MY Iris Yacht from Iris to Enares or a person nominated by Enares;
(ii) MY Proteus Yacht from Proteus to Enares or a person nominated by Enares;
(iii) MY Nemesis Yacht from Nemesis to Enares or a person nominated by Enares; and
(iv) Sirocco Yacht from John Michael Barbouttis to Enares or a person nominated by Enares,
and the physical delivery to Enares of MY Iris Yacht, MY Proteus Yacht, MY Nemesis Yacht and the Sirocco Yacht to the location in Athens, specified by Enares prior to execution of this Deed or in default of such specification, the delivery to Enares of a declaration that the transferors are holding the yachts to the order of Enares as trustee of Enares; …
66 It will be observed that under the definition of “Completion” there are two requirements, namely (1) transfer of title and (2) physical delivery or a declaration that the transferors are holding the yachts to the order of Enares as trustee of Enares.
67 That introduces the final document in the suite of agreements, namely a declaration of trust, also dated 1 May 2015. It is executed by each of the vessel owners, namely Mr Barbouttis and the NEPA companies, who are collectively referred to as the trustees, and declares that each of the trustees holds with immediate effect each of the vessels identified in the deed of indemnity “upon trust for Enares”.
68 Thus, with immediate effect from 1 May 2015 the second requirement for completion was satisfied. Also, by 1 May 2015 transfer of title had already occurred in respect of the three NEPA vessels under the bills of sale dated 9 April 2015 – although I will return to the respondent’s contention that since Iris remains on the Greek register its title did not transfer with the bill of sale. Transfer of title in respect of the Sirocco yacht (named Megisti Blue) occurred under the bill of sale dated 11 May 2015.
69 It follows that on one view completion had occurred by 11 May 2015. I will however return to the respondents’ submissions to the effect that completion had not only not occurred by that date, but that it has still not occurred.
70 Returning now to the evidence of Mr Barbouttis, after execution of the suite of agreements, various debts were claimed in Greece that had to be paid. That was as had been anticipated prior to the suite of agreements being concluded.
71 The debts included in relation to superannuation amounts owing arising from the employment of crew for the yachts (referred to by the Greek acronym NAT).
72 Proteus and Nemesis were successfully removed from Greece, but some sort of block was put on the removal of Iris on account of a claim by the Greek tax authorities. Ultimately Iris was also removed, and there is some evidence that it was removed without proper authorisation. Whilst that is not clear on the evidence, for present purposes I am prepared to accept that that is so.
73 Mr Barbouttis also faces various criminal charges in respect of outstanding obligations of the NEPA companies and Megisti Blue. These include arising from the failure to make certain returns to the tax authorities and non-payment of debts to the Greek State in respect of Iris, Proteus and Nemesis. There is some hearsay evidence that Mr Barbouttis’s house in Greece has been seized by the Greek tax office due to the debts of the companies. It is said that the seizure is an administrative measure and takes place under the administrative-tax procedure. It is not said that it is a forfeiture, at this stage at least.
74 In respect of the departure of the Iris from Greece, there is a summons to Mr Barbouttis dated 18 May 2017 requiring him, within two days from delivery of the summons, to appear before an officer of the Port of Piraeus “in order to be witnessed with regard to the sailing/departure, without permission, and the failure to check the prescribed under law maritime documents from the ZEUS Port Authority, on 9th.10.20 16, of the vessel IRIS”. Mr Barbouttis explains that he had to attend and give evidence before a hearing with regard to the removal of Iris, and he notes that the Iris remains registered on the Greek shipping register.
75 Through the latter part of 2015 and 2016 there is inter-solicitor correspondence in which Mr Barbouttis and the Greek companies assert claims for funding from Enares under the deed of indemnity to meet the various obligations referred to above, and various reasons are advanced in response as to why the funds were not required to be paid, at least not yet. I will return to that correspondence shortly. The point is that not long after the suite of agreements was concluded and concerted efforts were made to wind up the chartering business in Greece, a dispute arose as to Mr Barbouttis and the Greek companies being indemnified for their liabilities and expenses arising from Mr Barbouttis’s work for the Sutton group in relation to the Greek charter business.
Has “completion” occurred?
76 The ways in which the respondents seek to justify the caveat makes whether or not completion has occurred a critical issue. If it has not occurred, they assert, in reliance on cl 2.4(iii) of the deed of indemnity, that the applicant owns Hunter in trust for them. If completion has occurred, they assert that they previously owned Hunter in trust for the applicant (or more broadly the Sutton group) and that they have an equitable lien over Hunter in respect of liabilities and expenses incurred by them as trustees.
77 As indicated, the respondents assert various bases upon which it is to be concluded that completion has occurred. I will consider each in turn.
78 On 5 August 2016, Michael Page, a solicitor acting on behalf of Mr Barbouttis, George and the Greek companies, wrote to Paul Forbes, a solicitor acting on behalf of Enares, seeking confirmation that Enares will pay his clients’ reasonable actual costs already incurred and to be incurred. Mr Page relied on the deed of indemnity and asserted that completion had occurred giving rise to the obligation to indemnify. In a follow up letter on 23 August 2016, Mr Page threatened legal proceedings and asked whether Enares’s solicitors had instructions to accept service for Enares and Neil Sutton.
79 On 23 August 2016, Mr Forbes replied to those letters. Amongst other things he stated that “it is not clear to our client that Completion, as defined in the Deed, has, in fact, taken place”. Specifically, he said that although physical delivery of the yachts had taken place, deletion of all and each of the yachts’ titles from the Hellenic Register of Shipping had not occurred as Iris remained on that register. He said that “if” completion has not been achieved, the indemnities are not effective or operative.
80 The respondents rely on that position having been taken on behalf of Enares (presumably also on behalf of the applicant although it is not stated) to give rise to an estoppel preventing the applicant from now contending that completion has occurred. The respondents did not identify what form of estoppel they rely on.
81 There are a number of reasons why any reliance by the respondents on common law estoppel by representation fails – applying the well-known description in Commonwealth v Verwayen  HCA 39; 170 CLR 394 at 422 per Brennan J. First, the position adopted by Mr Forbes was expressly equivocal. An equivocal representation of that nature cannot ordinarily give rise to an estoppel as it is simply insufficiently clear: Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd  HCA 26; 260 CLR 1 at  per French CJ, Kiefel and Bell JJ. Second, on 17 November 2016, Mr Page replied to Mr Forbes’s letter disputing the position taken by him on behalf of Enares. In those circumstances, it cannot be said that the respondents relied on the position taken in Mr Forbes’s letter with regard to completion not having occurred – it would be truly ironic if notwithstanding the respondents consistently having taken the positon that completion has occurred they could now estop the applicant from agreeing with them. Third, the respondents have not adduced any evidence of reliance on Mr Forbes’s letter to change their position.
82 For similar reasons, any reliance on equitable estoppel, as expounded in Waltons Stores (Interstate) Ltd v Maher  HCA 7; 164 CLR 387 at 404 per Mason CJ and Wilson J, must also fail. Mr Forbes’s letter of 23 August 2016 does not give rise to a commonly assumed position between the parties. To the contrary, they took opposing positions, albeit equivocally by Enares, and maintained them. There was therefore also no reliance by the respondents on any assumed position. There is simply no basis for equity to come to the relief of the respondents in these circumstances.
Iris remains on the Greek register
83 The respondents submitted that since Iris remains on the Greek register of shipping, transfer of title of Iris as required by the definition of “completion” has not occurred.
84 I do not accept this submission. It is quite clear that the reference in the definition of completion to “transfer of title” is a reference to transfer of legal title. I did not understand there to be any dispute about that.
85 Legal title is shown to have been transferred by the Iris bill of sale dated 9 April 2015 – it declares the transfer of all the shares in the yacht. Payment of the purchase price of €2 million, as recorded in that bill of sale, was achieved by two promissory notes dated 1 May 2015, one for €1,500,000 and the other for €500,000. It is not contended by the respondents that Iris was not also physically delivered. Indeed, Mr Barbouttis’s evidence is that the Sutton interests removed Iris from Greece from which it follows that there was physical delivery to them.
86 It is well-established, at least in respect of Australian law, that legal title to a ship does not depend on registration of title in a relevant register; the Act does not provide title by registration, but rather provides evidence of title; ownership precedes and is a requirement for registration: Tisand Pty Ltd v The Owners of the Ship ‘MV Cape Moreton (ex Freya)’  FCAFC 68; 143 FCR 43 at  and  per Ryan and Allsop JJ, and Mentink v Registrar of Australian Register of Ships  FCAFC 150; 234 FCR 458 at - per Rares, Logan and Mckerracher JJ. There is an involved question of private international law as to which system of law reference should be made in determining whether title passed, and hence whether the fact of continued registration on the Greek register has the effect of preventing title from having passed: see Tisand at - and Korea Shipping Corporation v Lord Energy SA  FCAFC 201; 363 ALR 312 at . In the present case the only other contender is Greek law (on the basis of Greek registration and possibly presence in Greece at the relevant time), and since no suggestion was made, let alone evidence adduced, that Greek law is contrary to Australian law on this question, it is to be assumed that it is the same: Tisand at -.
87 Also, the relevant agreements have a New South Wales law choice of law clause. The Sale of Goods Act 1923 (NSW) applies to the sale of ships: Sirius Shipping Corp v Ship ‘Sunrise’  NSWSC 398 at  per Young CJ in Eq. Section 22(1) of that Act provides that the property is transferred to the buyer at such time as the parties to the contract intend it to be transferred. Section 23 sets out five rules for ascertaining that intention. Rule 1 provides that where there is an unconditional contract for the sale of specific goods in a deliverable state, the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment or the time of delivery, or both, is postponed. Rule 1 applies in the present instance, and there is no reason to suggest that the parties’ intention was other than that legal title to the vessel would pass with the bill of sale.
Title to Iris is encumbered
88 The respondents submitted that all the vessels (namely, Iris, Proteus, Nemesis and the Sirocco yacht) are subject to a charge or encumbrance in favour of the Greek tax office such that even if title in them passed, that was not unencumbered title and that completion has therefore not occurred. That submission depends on the reference to “title” in the definition of “Completion” being construed to mean “unencumbered title”.
89 I do not see any reason for such a construction. Moreover, such a construction would be contrary to commercial considerations. The suite of agreements which achieved, amongst other things, the transfer of the yachts, the restatement of loans, the forgiveness of debts and the provision of indemnities and releases, assumed that there may be claims that had arisen in relation to the vessels. Any number of those claims might have given rise, under Greek law, to charges or encumbrances on the vessels. Moreover, by way of example, even in the limited circumstances of maritime liens arising under Australian law, the claims of the crew would give rise to maritime liens.
90 In those circumstances, it must be regarded as within the common contemplation or understanding of the parties that there might be charges or encumbrances on the vessels that were unregistered and not easily ascertainable. In part, the indemnities were provided to be able to pay debts that might give rise to such charges or encumbrances. It would be contrary to the scheme of the agreements if the indemnities did not arise until the charges or encumbrances had been discharged.
91 In the circumstances, I see no justification for a construction that the definition of completion required transfer of unencumbered title. That is to say, there is no serious question to be tried on whether the definition of completion required transfer of unencumbered title; with sufficient certainty, it did not.
If completion has not occurred
92 The applicant submitted that even if completion has not occurred, it is not open to the respondents to rely on the trust established by clause 2.4(iii) because that clause is no longer operative. They submit that on its proper construction, it only operates in the time period within which the deed of indemnity could still be cancelled under cl 2.4(i) which was at its latest, as reasoned above, 8 November 2015.
93 The principal reason advanced for that construction, as I understand it, is that the purpose of providing that the Enares group shall hold title and possession of the yachts in trust for the Megisti entities until completion shall have occurred is to preserve the ability to restore full title and possession of each of the yachts to their previous owner under cl 2.4(ii) in the event that there is a termination under cl 2.4(i).
94 Whilst I see considerable force in this argument, in view of my firm conclusion that on the present state of the evidence there is no serious question to be tried with regard to whether completion has occurred, it is not necessary for me to decide this point. Considerations of urgency dictate against that course, and in any event the subtlety of the argument might be seen to give support to the contention that it should in any event not be decided against the respondents at the level of whether it raises a serious issue to be tried.
Completion has occurred
95 On the basis that completion has occurred, the respondents submitted that they maintain a caveatable interest in Hunter as trustees to meet their Greek tax obligations.
96 First, the respondents rely on an implied trust. In reliance on Korda v Australian Executor Trustees (SA) Ltd  HCA 6; 255 CLR 62 at  per French CJ, they submitted that such a trust arises where the court infers an actual intention to create a trust by reference to “the language of documents or oral dealings having regard to the nature of the transactions and the circumstances attending the relationship between the parties”.
97 The respondents submitted that the facts of the present case show an intention by Neil Sutton and the directors of the respondent companies that the companies would hold the vessels on trust for Neil Sutton. They rely on Neil Sutton having provided all the funding for the Greek venture. They say he was to derive all the profit and that Mr Barbouttis stood to gain nothing in addition to his existing retainer and later salary in Australia.
98 The principal difficulty with the submission that there is an implied trust is with regard to the timing. Whilst there may be some force to the argument that an implied trust arose and existed in the period prior to 1 May 2015 – and leaving aside all the complexities with regard to who the trust was for and to disregard independent corporate personality, the respondents’ submissions do not engage at all with how things changed at that time.
99 In Korda, Gageler J (at ) made the observation that where parties to a contract have refrained from contractual use of the terminology of trust, an intention to create a trust will be imputed to them only if, and to the extent that, a trust is the legal mechanism which is appropriate to give legal effect to the relationship between the parties, or between a party and a third party, as established or acknowledged by the express or implied terms of the contract. The question is whether recognition and enforcement of a trust is appropriate to give effect in law to entitlements and obligations which the parties, according to ordinary principles of contractual interpretation, can be taken together to have intended to exist in fact.
100 Also in Korda, Keane J (at ) cited Kauter v Hilton  HCA 95; 19 CLR 86 at 97 where Dixon CJ, Williams and Fullagar JJ referred to “the established rule that in order to constitute a trust the intention to do so must be clear and that it must also be clear what property is subject to the trust and reasonably certain who are the beneficiaries”.
101 I do not see any reasonable basis to imply a trust relationship between the respondents as trustees and the applicant as owner of a trust asset after completion. The evidence is all one way – together the parties sought to close down the Greek charter business, to remove the vessels to Australia, to wind up the Greek companies and to provide for the payment of all remaining liabilities and obligations. That was done contractually without the use of the language of trust, and without a basis to conclude that a trust was intended.
102 Even if, which is far from clear on the evidence, the funds for the purchase and trading of the yachts was provided by the Sutton group or Neil Sutton to Mr Barbouttis and the Greek companies other than by way of loans at the time the funds were provided, that changed on 1 May 2015 when the parties committed to a particular characterisation of the provision of those funds. The evidence clearly shows that well before that date, even to his own legal advisors, Mr Barbouttis was characterising the provision of the funds as by way of loan. That characterisation was that there are loans and they would be repaid in a particular way and, to the extent not repaid, forgiven. Along with that, there was the provision of the indemnities and releases. That is what Mr Barbouttis bargained for, and that is what he got. On his own evidence, Neil Sutton and the Sutton group have considerable assets. There is no cause to think that Mr Barbouttis thought that he required any security for the indemnities and releases.
103 Certainly, from the evidence and the way in which the respondents have put their case it is far from clear what property is said to be subject to the implied trust, and it is not reasonably certain who the beneficiaries are.
104 In the circumstances, I am not satisfied that there is a serious issue to be tried with regard to the respondents’ case for an implied trust.
105 In the alternative, the respondents submitted that there is a presumption of a resulting trust. They say that that arises from the vessels having been purchased entirely with money provided by Neil Sutton.
106 The resulting trust case meets the same difficulty with regard to the agreed characterisation by the parties to the suite of agreements that the funds were provided by way of loan. Whatever the position was before that time, it must have changed at that time. To the extent that there was any resulting trust prior to that time, with recourse to the trust assets, all of that changed with the agreements.
107 The suite of agreements does not leave space for a resulting trust to have continued thereafter.
108 Linked to their cases with regard to an implied trust and a resulting trust, the respondents assert that they have an equitable lien over Hunter.
109 With reference to Hewitt v Court  HCA 7; 149 CLR 639 at 663 per Deane J, an equitable lien is a right against property which arises automatically by implication of equity to secure the discharge of an actual or potential indebtedness. It is a form of equitable charge over the subject property. While it arises by implication of some equitable doctrine applicable to the circumstances, its implication can be precluded or qualified by express or implied agreement of the parties. Generally speaking, the established examples of equitable lien are between parties in a contractual or quasi-contractual relationship.
110 Deane J (at 668) identified the circumstances which are sufficient for the implication, independently of agreement, of an equitable lien between parties in a contractual relationship. They are: (1) that there be an actual or potential indebtedness on the part of the party who is the owner of the property to the other party arising from a payment or promise of payment either of consideration in relation to the acquisition of the property or of an expense incurred in relation to it; (2) that that property be specifically identified and appropriated to the performance of the contract; and (3) that the relationship between the actual or potential indebtedness and the identified and appropriated property be such that the owner would be acting unconscientiously or unfairly if he were to dispose of the property to a stranger without the consent of the other party or without the actual or potential liability having been discharged.
111 It is particularly with reference to the third circumstance identified by Deane J that the respondents’ case does not rise to the level of a serious question to be tried. The suite of agreements and associated arrangements in April and May 2015 were aimed at, amongst other things, returning the yachts to Australia without limitation as to what would then be done with them. The debts that had already arisen, and those still to arise, were expressly taken care of by the indemnities and releases. Moreover, Mr Barbouttis accepted, for himself and those whom he represented, the creditworthiness of the indemnifiers. Indeed, that was a specific point raised by him in response to the original draft indemnity which had only MYCS as the indemnifier, an arrangement that he described as “fairly worthless”. Title to the yachts was transferred without reservation.
112 In the circumstances, the present evidence is insufficient to conclude that the applicant would be acting unconscientiously or unfairly if it was to dispose of Hunter to a third party.
113 The respondents referred generally to Fiona Burns “The Equitable Lien Rediscovered: A Remedy for the 21st Century” (2002) 25(1) UNSW Law Journal 1, but I do not find anything in that article to justify going beyond what was laid down in Hewitt v Court.
114 It may be a point of some interest that the respondents’ contention that completion under the deed of indemnity required the transfer of unencumbered title of the yachts is in conflict with the contention that after completion they have equitable liens over the yachts. Be that as it may, since I have rejected the first contention the conflict between it and the second contention does not preclude the second contention from possibly having validity.
Interest arising from the Greek State’s charge over the vessels
115 The respondents submitted that they remain accountable to the Greek State for tax liabilities. They say that the Greek State has a charge over the vessels which gives rise to an equitable lien over the vessels in favour of the respondents.
116 The respondents submitted that the NEPA companies have a caveatable right consisting of their right to prevent the sale unless and until the Greek tax authorities’ charge has been discharged. They then say that this is especially the case “where the yachts were fraudulently removed from Greece without the consent or knowledge of the NEPAs and for the purpose of inflicting the liabilities that attached to the yachts upon the directors of the NEPAs and their personal assets in Greece”.
117 There is no basis in the evidence for the submission with regard to fraud and intention to inflict liabilities upon the directors of the NEPA companies and their personal assets in Greece. As I have shown, Mr Barbouttis was a signatory to every one of the suite of documents including the bills of sale, either in his personal capacity or on behalf of the relevant Greek company. Not only was he a solicitor at the time, but the evidence shows that he took ongoing independent legal advice with regard to the conclusion of those agreements. He entered into them with his eyes wide open and must be taken to have been fully aware of the implications. The very purpose of the agreements was to achieve the winding down of the Greek chartering business, remove the vessels to Australia and settle the outstanding liabilities. There is simply no basis for the fraud submission.
118 Aside from with regard to Iris, there is no evidence of the vessels being subject to charges in favour of the Greek State. The fact that – to take the vessel that is the subject of this proceeding – Hunter was removed from Greece, removed from the Greek registry and registered in the Australian General Register, counts overwhelmingly against the contention that the vessel is subject to a charge in favour of the Greek state. The same is true of Nemesis and the Sirocco boat. The respondents have adduced no evidence to the contrary.
119 I do not understand the respondents to have submitted that the alleged charge of the Greek State over Iris on its own gives them any equitable lien over Hunter. In any event, I see no basis for such a contention.
120 In the circumstances, this basis for justifying the caveat must also fail.
The respondents’ right to terminate the deed
121 The respondents submitted in written submissions that they had and retain the right to terminate the deed of indemnity for fraud and misrepresentation, and that would have the consequence that the yachts must be reconveyed to the NEPA companies.
122 The submission was not advanced orally. That may be because there is no evidence to support the case for termination for fraud, and no case for termination for misrepresentation was identified.
123 From the way in which the case was put, I am not able to identify on what basis the respondents might be able to terminate the deed of indemnity on either of these grounds. As indicated above, the ability to terminate under cl 2.4(i) came to an end, at the latest, on 8 November 2015.
124 I do not consider there to be any serious question to be tried on this part of the case.
Conclusion on serious question to be tried
125 To summarise, even if the respondents’ evidence remains as it is and is accepted at a trial in due course, I consider that there is no reasonable probability that the respondents will be successful in the claims that they assert against Hunter; the respondents’ likelihood of success in establishing the interests that they assert is insufficient to justify the preservation of the caveat pending a trial.
Balance of convenience
126 The applicant advanced a number of submissions in favour of the overall contention that the balance of convenience favours discharge of the caveat even if the threshold hurdle of a serious question to be tried has been overcome by the respondents.
127 First, the applicant pointed to the weakness of the respondents’ case. In view of my conclusion that there is no serious issue to be tried in relation to the respondents’ case, I inevitably also find that their case is very weak. Put differently, even if I am wrong in concluding that there is no serious question to be tried, the respondents’ case must be regarded as having only just cleared that hurdle and, accordingly, is still very weak.
128 Second, the applicant submitted that if the caveat is maintained, but the respondents ultimately fail in their claim, the applicant will suffer the loss of the sale, which is not readily replaced with another sale. The applicant submitted that it is not likely to receive any compensation from the respondents because they are all in the process of being wound up in Greece and are subject to substantial liabilities. The force of that submission is weakened by what would otherwise be my acceptance of the applicant’s submission that, in the event that the caveat is maintained, that should be on the condition that the respondents give the usual undertaking as to damages and that they secure that undertaking. However, the fact that the sale will be lost and, for now at least, the prospective damages will be difficult to quantify and therefore it will be difficult to quantify the security, weighs against maintaining the caveat.
129 Third, the applicant submitted that if the caveat is removed but that the respondents ultimately succeed in their claim, on the evidence their claims are still likely to be met by the wealthy Sutton group and Neil Sutton. There is considerable force in that submission.
130 Fourth, the applicant submitted that the impact on a third party, namely the purchaser of Hunter, is to be taken into account and that it weighs heavily in favour of removal of the caveat. I accept that the interests of a third party is a relevant consideration in this context, as it is with regard to the granting of equitable relief: Perrey v Mordiesel Co Pty Ltd  VR 569 at 576 per Lush J. Moreover, it is relevant in this context that courts should be chary about granting an equitable remedy which would have the effect of interfering with the contractual rights of a third party: PSM International plc v Whitehouse  FSR 489;  IRLR 279 at  per Lloyd LJ, Neill LJ agreeing.
131 In that regard, the purchaser has an equitable interest in the property that is subject to the sale agreement pending completion of the sale: Brown v Heffer  HCA 40; 116 CLR 344 at 348-349 per Barwick CJ, McTiernan, Kitto and Owen JJ. The applicant also submitted that having paid a deposit, the third party purchaser has an equitable lien over Hunter: Hewitt v Court at 663 per Deane J.
132 The sale contract for Hunter records that the purchaser paid a deposit representing 30% of the purchase price, i.e. $1,452,000. The arrangement between vendor and purchaser by which either party may give the other 24 hours’ notice in writing to terminate the contract if the caveat is not removed on or before 9 September 2019, records that the 30% deposit is retained by the broker and that it will be refunded in the event of such a termination.
133 The result is that although the purchaser has an equitable lien, and will likely lose out on the sale in the event that the caveat is maintained, it is likely to be refunded the deposit that it has already been paid. In the circumstances, the interests of the third party purchaser certainly weigh in favour of removal of the caveat, but they do not weigh particularly heavily.
134 Fifth, the applicant pointed to the timing of the caveat. It pointed out that the respondents only sought to protect their interest at the last minute when a sale had been concluded and would likely be jeopardised by the entry of the caveat. In my view this is a weighty consideration. The parties, as indicated, have been in dispute with regard to the respondents’ claims since 2015. Hunter has been on sale, and actively marketed at boat shows in Australia and abroad, since May 2016, i.e. for nearly three and a half years. That includes marketing by a yacht broker on the internet which would be accessible by simple internet search at any time and from any place. Mr Barbouttis does not say that he did not know that Hunter was being marketed for sale over a long period of time before he lodged the caveat.
135 In contrast, Mr Barbouttis says in his affidavit that when he attended the Sydney International Boat Show in August 2019, he was told that Hunter had been sold subject to survey and as a result he decided to lodge the caveat to protect “my interests”. He does not explain why he did not do so earlier, or why he has not previously brought proceedings to vindicate the claims that he asserts that he and the respondents have. The inference is certainly available that he entered the caveat to apply leverage, rather than because he has any genuine confidence in its validity.
136 Sixth, the applicant pointed to the respondents’ claims not being properly articulated and the basis upon which they are put seeming to indicate a potential claim by Mr Barbouttis rather than by them. There is something in this. Mr Barbouttis has not himself entered a caveat on the register, yet on the way in which the claims have been put he would have the clearest claim for an equitable interest in Hunter. Instead, the respondents, which are unlikely to be able to meet any costs order never mind any compensation order under s 47E, are the caveators. This supports the inferences that the caveat has been entered to apply leverage and that Mr Barbouttis has no genuine confidence in its validity.
137 Added to this may be the unclear and changing nature of the respondents’ claims. As indicated above, the caveat is recorded as being on the basis that the caveators are “Beneficial Owners”. When called upon to justify the basis for the caveat by the applicant’s solicitors, the respondents’ solicitor put the basis for the caveat as follows:
In response to past requests on behalf of our clients for your clients to honour their obligations under the Deed of Indemnity, your clients have failed to do so. Your clients have taken the point, amongst others, that they were not obliged to indemnify our clients because they did not accept that Completion as defined by the Deed had occurred.
If Completion has not occurred, your clients are not entitled to retain possession of the three vessels the subject of the Deed but are obliged to deal with them as trustees for our clients.
138 That is a very narrow basis to justify the caveat. It is only when the respondents put on written submissions, which was after the applicant’s submissions and the day before the hearing, that they first articulated a case premised on completion having taken place and circumstances giving rise to an implied or resulting trust and/or an equitable lien. The manner in which that case was put has made it difficult to understand. The point is simply this, if a party is to exercise the rights available to it to lodge a caveat on the register against the ownership of a ship of another, it should be ready and organised to justify that caveat at short notice. That is particularly so if it has had a long period of time in which to get organised.
139 Finally, the applicant submitted that if the respondents are correct and completion has not occurred then they will be liable to repay the loans. I do not consider this to be a factor on balance of convenience, in particular because the respondents have put their case both on the basis of completion not having occurred and, alternatively, it having occurred. To the extent that there is any substance to the claim on either of those alternatives, it is the latter that has more going for it. On that basis the loans would not have to be repaid.
140 There is an additional factor which is that the respondents have not quantified their claims in any manner, notwithstanding having had a very long time to do so. That means that the applicant has not been in a position to consider securing their claims in return for the caveat being removed – other than to secure them in the full amount of the sale price of Hunter which may or may not well exceed the extent of the claims.
141 This last factor rather detracts from the force of the respondents’ submission that on the question of balance of convenience I should take account of an offer by them made in open court that they would remove the caveat against an undertaking that the proceeds of the sale of Hunter would be held in escrow and available to meet any claims that they proved in due course.
142 In the circumstances, even if I had concluded that the respondents had satisfied me that they had a serious issue to be tried in relation to their articulated caveatable interests in Hunter, I would have ordered the removal of the caveat on the basis of balance of convenience. The principal consideration in that regard, although I do not intend to detract from the others that I have identified, is that the respondents do not need the caveat to protect their interests – they are quite able to assert those interests in conventional proceedings and there is no suggestion that any judgment that they may get will not be met.
Dated: 5 September 2019