SUPREME COURT OF QUEENSLAND CITATION: DT & MF Holdings Pty Ltd ACN 611 700 746 & others v Ascendia Accountants (Noosa) Pty Ltd ACN 123 735 393 & others [2017] QSC 330 PARTIES: DT & MF HOLDINGS PTY LTD ACN 611 700 746 & others (Applicant) v ASCENDIA ACCOUNTANTS (NOOSA) PTY LTD ACN 123 735 393 & others (Respondent) FILE NO/S: BS No 11478 of 2017 DIVISION: PROCEEDING: ORIGINATING COURT: Trial Originating Application Supreme Court at Brisbane DELIVERED ON: 22 December 2017 DELIVERED AT: Brisbane HEARING DATE: 10 November 2017 JUDGE: ORDER: CATCHWORDS: Lyons SJA 1. The application is dismissed with costs. REAL PROPERTY TORRENS TITLE CAVEATS AGAINST DEALINGS REMOVAL PARTICULAR CASES where the respondents lodged caveats over real property owned by the applicants pursuant to a clause in a written agreement between the parties where the applicants apply pursuant to s 127 of the Land Title Act 1994 (Qld) to have the caveats removed whether the caveats should be removed Land Title Act 1994 (Qld) s 127 Property Law Act 1974 (Qld) s 11, s 59 Australian Broadcasting Corporation v O Neill (2006) 227 CLR 57 Australian & New Zealand Banking Group Ltd v Widin (1990) 26 FCR 21 EA & S Plaster v Registrar of Titles [2000] QSC 14 Hanson Construction Material P/L v Norlis & Ors [2010] QSC 34
2 Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41 Norberg v Wynrib [1992] 2 SCR 226 Pilmer v Duke Group Ltd (in liq) [2001] HCA 31 Re Burman s Caveat [1994] 1 Qd R 123 Re Heritage Properties (No. 3) Pty Ltd s Caveat, unreported, Appeal 91, 92/1993, Court of Appeal, 1 June 1993 Re Jorss Caveat [1982] Qd R 458 Zen Ridgeway Pty Lt v Adams [2009] QSC 117 COUNSEL: SOLICITORS: M Callanan for the applicants C A Wilkins for the respondents Woods Prince Lawyers for the applicants Spire Law Pty Ltd for the respondents This application [1] This is an application pursuant to s 127 of the Land Title Act 1994 (Qld) for the removal of 18 caveats registered by the first and third respondents over six properties owned by the applicants. The applicants also apply for orders preventing the respondent from lodging further caveats without leave of the Court. [2] The respondents claim that the caveats were registered over the properties to protect their equitable interest in the properties. The applicants submit that no such interest exists. Background Relationship between the parties [3] The first two respondents were the financial planners/accountants for the applicants. The first respondent engaged the third respondent Klooger Phillips Lawyers Pty Ltd (originally Ascendia Lawyers Pty Ltd) to undertake legal work. Sherman Jenner is the director of each of the respondent companies. [4] Seven of the nine applicants are trustees. The third and seventh applicant are companies. Damien Griffiths is the only director of the first to fifth and eight to ninth applicants. Scott Lynch is the director of the sixth and seventh applicants. [5] Between 25 August 2011 and 12 September 2016, 38 separate Letters of Engagement were sent by the respondents to Mr Griffiths, as representative of each of the applicants. The first and third respondents allege that between those dates Mr Griffiths signed each Letter of Engagement on behalf of each of the applicants thereby agreeing to engage the respondents to provide each applicant with accountancy, financial and legal services. [6] Mr Lynch in his affidavit sworn 2 November 2017 deposes that Mr Griffiths handled all dealings between the sixth and seventh applicants and the respondents. 1 Mr Lynch 1 Affidavit of S Lynch sworn 2 November 2017, Court Document Number 2.
3 deposes that he has never had any dealings with the first, second and third respondents and that prior to the commencement of these proceedings he had not seen any of the Letters of Engagement. He also swears that no one has ever given him a mortgage document in relation to any of the properties the subject of the caveats and he has not been requested to sign any such document. [7] In his affidavit 2 sworn 6 November 2017, Mr Griffiths states that he did not obtain any advice about the terms and conditions in the Letters of Engagement and that no one ever explained to him or gave him advice as to what a charging clause, an equitable charge or an equitable mortgage was. He also swears that he was not informed that the Letters of Engagement contained terms that brought the financial interest of the accountants into conflict with the financial interests of himself or any of his companies. He also swears that no one has ever given him a mortgage document in relation to any of the properties the subject of the caveats and he has not been requested to sign any such document. [8] At the hearing of this matter on 10 November 2017, the applicants sought to rely on information contained in an affidavit sworn on 10 November 2017 by Heather Beckingsale, the solicitor for Mr Griffiths, made on the basis of information and belief. I considered at the hearing of this matter that given final relief was sought, the affidavit was in breach of r 430(2) of the Uniform Civil Procedure Rules 1999 (Qld) and could not be relied upon. No doubt the issues raised in that affidavit will be the subject of evidence in the District Court proceedings. [9] Both Messrs Lynch and Griffiths are qualified lawyers. Letter of Engagement 12 September 2016 [10] Save for differences related to the type of service provided, each Letter of Engagement sent by the respondents to the applicants contained identical Terms and Conditions as follows, noting in particular Clause 11.1: 1.1 Financial/Accountant shall mean Ascendia its successors and assigns or any person acting on behalf of and with the Authority of Ascendia. 1.2 Client shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described in any quotation, work authorisation or other form as provided by the Financial Planner/Accountant to the Client. 1.3 Guarantor means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis. 1.4 Services shall mean all Services supplied by the Financial Planner/Accountant to the Client and includes any advice or recommendations. 1.5 Price shall mean the price payable for the Services as greed between the Financial Planner/Accountant and the Client in accordance with clause 3 of this contract. 2 Filed with leave on 10 November 2017.
4 2.1 Any instructions received by the Financial Planner/Accountant from the Client for the supply of Services supplied by the Financial Planner/Accountant shall constitute acceptance of the terms and conditions contained herein and at www.ascendia.com.au. 2.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price. 3.1 As the Financial Planner/Accountant s sole discretion the Price shall be either (a) as indicated on invoices provided by the Financial Planner/Accountant to the Client in respect of Services supplied; or (b) the Financial Planner/Accountant s quoted price as detailed in either the Financial Planner/Accountant s service agreement document or the Financial Planner/Accountant s letter of engagement (subject to clause 3.2) which shall be binding upon the Financial Planner/Accountant provided that the Client shall accept the Financial Planner/Accountant s quotation in writing within thirty (30) days. 3.5 Time for payment for the Services shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) or fourteen (14) days following the date of the invoice as the Financial Planner/Accountant s sole discretion. 10.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month and such interest shall compound monthly at such a rate after as well as before any judgment. 10.2 If the Client defaults in payment of any invoice when due, the Client shall indemnify the Financial Planner/Accountant from and against all costs and disbursements incurred by the Financial Planner/Accountant in pursuing the debt including legal costs on a solicitor and own client basis and the Financial Planner/Accountant s collection agency costs. 10.4 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10.00%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
5 11.1 Despite anything to the contrary contained herein or any other rights which the Financial planner/accountant may have howsoever: (a) where the Client and/or the Guarantor (if any) is the owner of land, realty, personal or business records, Company/Trust/SMSF registers, ATO refund cheques made payable to the Client, or any other asset including those capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty, personal or business record or Company/Trust/SMSF registers, ATO refund cheques, or any other asset to the Financial Planner/Accountant or the Financial Planner/Accountant s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that the Financial Planner/Accountant (or the Financial Planner/Accountant s nominee) shall be entitled to lodge where appropriate a caveat or take a lien or take possession of any such property mentioned in this section. Such a caveat, charge, lien, or possession shall be withdrawn once all payments and other monetary obligations payable hereunder have been met. (b) should the Financial Planner/Accountant elect to proceed in any manner in accordance with this clause and/or its subclauses, the Client and/or Guarantor shall indemnify the Financial Planner/Account from and against all the Financial Planner/Accountant s costs and disbursements including legal costs on a solicitor and own client basis. (c) the Client and/or the Guarantor (if any) agree ot irrevocably nominate constitute and appoint the Financial Planner/Accountant or the Financial Planner/Accountant s nominee as the Client s and/or Guarantor s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 11.1. 14.6 The Financial Planner/Accountant may license or sub-contract all or any part of its rights and obligations without the Client s consent (my emphasis). Monies owed by the applicants to the respondents under the 12 September 2016 Letter of Engagement [11] The first respondent issued tax invoices for work completed under the 12 September 2016 Letter of Engagement totalling $84,856.20. [12] The first respondent also engaged the third respondent to undertake work under the Letter of Engagement dated 12 September 2016 and the third respondent subsequently issued invoices for work completed totalling $4,242.89. The third respondent was clearly not a party to the 12 September 2016 agreement but argues that the definition in the Terms and Conditions of Financial Planner/Accountant/Solicitor engages s 55 of the Property Law Act 1974 (Qld), which allows a non-party to enforce a promise which has been made for their benefit against a promisor. The third respondent therefore argues it was engaged to perform legal services by the first respondent for which the third respondent directly billed the applicants. By billing the applicants in this way it is
6 argued that the third respondent accepted the promise of the applicant to pay, as contained in Clause 3 of the Terms and Conditions. [13] The applicants have not paid the first or third respondents monies owing under these invoices. There is no evidence before me to indicate that the applicants dispute that indebtedness. In this regard I note the four emails sent in October and November 2016 by Mr Griffiths to Mr Jenner, as set out in the respondent s District Court Statement of Claim which is exhibited to the affidavit of Ms Beckingsale: 3 31 October 2016: I think I can get you [sic] fees paid in full today I will get it processed shortly. 8 November 2016: stated he was happy with the Ascendia Group and that he don t want to change accountants. 8 November 2016: stated that he wanted to sort out payments before referring to the Ascendia Group having achieved an amazing result with respect to capital gains tax. 9 November 2016: stated in reference to the amounts owing to the Ascendia Group, I was pretty grateful for everything you guys had done. realised you were carrying me. I probably didn t appreciate the amount. Caveats lodged by the respondents [14] On 24 April 2017 Mr Jenner, the director of each respondent company, caused 18 caveats to be registered over the six properties owned by the applicants pursuant to Clause 11.1 of 12 September 2016 Letter of Engagement. [15] Each caveat identifies the interest being claimed as an equitable interest as equitable mortgagee in the fee simple. 4 [16] Each caveat identifies the grounds of the claim as follows: As equitable interest in land, charging the land with payment of monies pursuant to Clause 11.1 of the Terms and Conditions of [the Agreement] between the Caveator and [the applicant] dated 12/09/2016. 5 District Court Proceedings [17] On 19 July 2017 the respondents commenced proceedings in the District Court seeking the payment of debts owing under the Letters of Engagement, as well as a declaration that they have an equitable mortgage or charge under Clause 11.1 of the Terms and Conditions of the agreement dated 12 September 2016 (as well as other agreements) over the six properties owned by the applicants. 6 The applicable law 3 Affidavit of H Beckingsale sworn 2 November 2017, Court Document 3, Exhibit HB35 p 158-159. 4 Ibid, Exhibit HB26 p 80. 5 Ibid. 6 Affidavit of H Beckingsale sworn 2 November 2017, Court Document 3, Exhibit HB35.
7 [18] Section 127 of the Land Title Act 1994 (Qld) is as follows: 127 Removing a caveat (1) A caveatee may at any time apply to the Supreme Court for an order that a caveat be removed. (2) The Supreme Court may make the order whether or not the caveator has been served with the application, and may make the order on the terms it considers appropriate. [19] The test for removal of caveats was considered by the Court of Appeal in the 1981 decision of Re Jorss Caveat 7 which held that a caveat lodged under the provisions of the then Real Property Act would only be removed if the caveator failed to show on evidence that there is a serious issue to be tried. That approach was then endorsed in the 1993 decision of Re Burman s Caveat 8 in the following terms by reference to an earlier 1993 decision of Re Heritage Properties (No. 3) Pty Ltd s Caveat: 9 That appeal concerned both an application for removal of a caveat lodged by a proposed lessee and an application for an interlocutory injunction to restrain dealing in the land proposed to be leased. The Court applied the same test to each, remarking: It has come to be accepted that in cases of this sort, the issue with respect to the caveat is akin to that relating to the interlocutory injunction (p. 12) There was then reference to some of the cases Mr Morrison mentioned. In our view, a substantial reason would ordinarily need to be advanced to justify our departing from such a substantial body of authority, the principal case being Re Jorss Caveat [1982] Qd.R. 458. The second obstacle is that the practice which has developed appears to work well and produce just results. Its appropriateness is, we think, particularly made manifest by cases such as Heritage Properties in which the claim was two-fold: to uphold a caveat and to obtain an interlocutory injunction. It would be anomalous if the accidental circumstance that the property the subject of the dispute happened not to be Torrens land, rendering the caveating procedure unavailable, should make the task of the party seeking to preserve the status quo harder, or easier. [20] Accordingly the applicant must be able to establish that (1) there is a serious question to be tried, and (2) the balance of convenience favours the caveat remaining. 10 The applicants submissions Removal of caveats 7 [1982] Qd R 458. 8 [1994] 1 Qd R 123 at 127. 9 Unreported, Appeal 91, 92/1993, Court of Appeal, 1 June 1993. 10 Australian Broadcasting Corporation v O Neill (2006) 227 CLR 57.
8 [21] The applicants argue that the caveats should be removed because the grounds of claim on which the caveats are based cannot be made out. In particular it is argued that the interest claimed in the caveat is not an equitable charge but rather an equitable mortgage and that there is a distinction between the two. The applicant argues that Clause 11.1 does not of itself constitute an equitable mortgage but rather, gives the respondents a contractual right to request that a mortgage be given. It is submitted that is there is a contractual agreement to give a mortgage in certain circumstances, but that an equitable mortgage does not arise until someone calls upon the agreement to be performed. [22] In this regard the applicants argue that a proper request has not been made by the respondents under Clause 11.1 because that can only be achieved by tendering a mortgage in registrable form, with a request pursuant to Clause 11.1, that it be executed. In essence the applicants claim that as no proper request was made by the respondents to execute a mortgage pursuant to Clause 11.1, no equitable mortgage arose, and the grounds of claim specified in the respondents caveats cannot be made out. [23] The applicants argue that the decision of White J in EA & S Plaster v Registrar of Titles 11 is authority for this proposition as it was held that there was a distinction between an equitable mortgage and an equitable charge as follows: [9] When the applicant made the request to the second respondent to execute the mortgage pursuant to cl10 an equitable mortgage came into being by means of what Professor Sykes described as "... substantially an unperformed agreement, express or implied, to execute a legal mortgage" Sykes and Walker The Law of Securities 5th ed (1993) p149. The learned authors identify this as a separate and distinct security interest from a charge "Arising from the pages of the law reports, however, in close association with the equitable mortgage, we find a far more shadowy security known as the equitable charge. When we enquire further we find that this latter security does not give a right of foreclosure. This important difference in remedy has not been accompanied by any attempt at a clear analysis of the difference in subject or mode of creation between the two. Even terminology has been confused" at p148. And again at p 192 "Although common law was very inactive in the field of land hypothecation, equity was far more prolific, and its activity resulted in the creation of those securities which are known as equitable charges and equitable liens.... The real difficulty in the view of the authors is the difficulty of distinguishing between equitable charges and equitable mortgages. There is a very important practical distinction in result which is in short that the equitable mortgagee is, and the equitable chargee is not, entitled to foreclosure on default." 11 [2000] QSC 14.
9 [10] The learned authors discussed the difference between the two at p197: "Turning to the difference in essential nature, we discussed previously the impossibility of regarding the equitable mortgage as belonging to the type of mortgage stricto sensu by virtue of conveying the full equitable title. It is certainly not a conveyance of such equitable title. On the other hand, it certainly does involve some splitting or division of ownership rights. The equitable charge does nothing of the kind; it is a pure hypothecation whereas the equitable mortgage is a mixed hypothecation. This seems to be the essence of the distinction. The most important result, so far as difference in substance is concerned, is that the equitable mortgagee has the potentiality of full beneficial ownership through the process of foreclosure; the equitable chargee as such can never attain the position of full beneficial onus. The chargee has the hypothec remedy of judicial sale, it is true, but that is a jus in re aliena." [24] The applicants also submit that even if Clause 11.1 was construed as constituting an equitable mortgage in writing (as distinct from parol), it is defective because it does not comply with ss 11 and 59 of the Property Law Act 1974 (Qld) in that the land to be charged with the mortgage is not identified. To this the applicants refer to the decision of Australian & New Zealand Banking Group Ltd v Widin 12 per Hill J where it was held: It was not in dispute that, for there to be a sufficient writing either for s23c or 54A, that writing must describe the subject matter of the mortgage. A mortgage of land which did not refer at all to the mortgaged property would be unenforceable. Nor could parol evidence be given to fill the gap in the mortgage and supply the missing title reference. [25] The applicants also rely on the decision of Margaret Wilson J in Zen Ridgeway Pty Ltd v Adams 13 to argue that in circumstances where there is no evidence giving rise to the existence of an equitable mortgage, there is no serious question to be tried. Whilst noting the arguments of the applicants in this regard I also note the strength of the submissions by the respondents that the decision of EA & S Plaster may be wrongly decided, as the chapter of Sykes relied upon was not the chapter which dealt with Torrens Title Land and there was no express consideration of the definition of mortgage in the Property Law Act. [26] In this regard it is significant to that the definition of mortgage in both the Land Title Act and the Property Law Act is expressed to include a charge on any property for securing money or money s worth. I also note the view expressed by Margaret Wilson J in Hanson Construction Material P/L v Norlis & Ors 14 that in Queensland the distinction between an equitable charge and an equitable mortgage is blurred by the definition in the Property Law Act. I do not consider therefore that the applicants have established that there are no facts upon which an equitable mortgage has or could have come into existence. I consider that there is a serious question to be tried and that this will be the substance of the dispute in the District Court proceedings. 12 (1990) 26 FCR 21, pp 28-32. 13 [2009] QSC 117. 14 [2010] QSC 34.
10 [27] In this regard it is clear that a caveat has been lodged and s 126 of the Land Title Act provides that if before the time when it would otherwise lapse a proceeding has been commenced in a court of competent jurisdiction, the caveat will not lapse. There can be no doubt that the District Court Proceedings have been commenced within the relevant period and those issues will no doubt be fully argued in the District Court Proceedings. [28] The applicants however further argue that there is no serious question to be tried in relation to the interest claimed by the respondents for two further reasons. First it is asserted that no independent legal advice was obtained by the applicants before the 12 September 2016 agreement was signed and as such, the third respondent breached its fiduciary duties owed to the applicants as legal advisors. It is also claimed that the assertion of an interest by the accountancy firm breached an accountant s fiduciary duties. [29] The applicants submit that the tenor of the Letter of Engagement is that the respondents will provide services to assist the applicants and that the agreement is in order to best meet your needs and provide you with financial services. It is argued that the nature of the charging clause is repugnant to the purpose of the retainer because it elevates the respondents from what would ordinarily be an unsecured creditor with a common law debt in contract to someone with standing to assert the existence of an equitable charge or mortgage. [30] Counsel for the applicants argues that that what the accountants effectively did was to take an interest in the property of their clients in circumstances where there was a real conflict of interest. In those circumstances it is argued that the accountants had to have their clients enter into the agreement with fully informed consent. The applicants argue that Clause 11.1 placed the respondents as accountants and legal advisers in positions of conflict with their clients, the applicants. It is argued that a conflict of interest and a very arguable breach of fiduciary duty has been made out in the circumstances of this case. [31] It would seem clear that the applicants are liable in debt to the respondents for the services they provided. I note in this regard that the question of a guarantee has not been raised and most of the authorities relied upon in relation to support an argument that there was a requirement for the provision of independent legal advice here in fact relate to cases involving guarantees. I have not been taken to any authorities which support the proposition that a charging clause such as the one in the Letter of Engagement will necessarily be invalid if there is not proof that independent legal advice was not obtained, particularly where the relevant parties are lawyers. [32] In this regard I also take into account the affidavit of Sherman Jenner sworn 9 November 2017 15 which provides as follows: 4. On 22 August 2016, I attended a meeting with Damian Griffiths at his coffee shop in Fortitude Valley. During this meeting I told Damian that in order to keep working for him I needed updated signed engagements with personal guarantees and the right to take security over his properties for amounts owing to us for all of his related entities. I said to Damian that he should send our engagements to Woods Prince, I knew they were his lawyers, or to one of his lawyer mates to 15 Filed with leave 10 November 2017.
11 check because I was going to have to take the security if we did not receive very substantial payment by the end of October. 5. On 7 October 2016, I had a telephone discussion with Damian. During this telephone discussion Damian told me that he had sorted out the engagements and that they were in the mail. 6. On or about 10 or 11 October I received a letter of engagement in the post, it was signed by Damian and dated 12 September 2016. Exhibited to this affidavit and marked SJ4 is a copy of that said letter of engagement. [33] I also consider that the applicants have not in fact established that the duty owed by accountants is indeed a duty which is akin to a fiduciary relationship in this case. I note the decision of the High Court in Pilmer v Duke Group Ltd (in liq), 16 where it was held that the accountants there owed no fiduciary duty to their clients. The High Court considered the following features of that particular accountant-client relationship to be relevant in coming to the conclusion that no fiduciary duty was owed: 17 In particular, the appellants were not agents of Kia Ora, there was no relationship of ascendancy or influence by the appellants over Kia Ora, nor one of dependence or trust on the part of Kia Ora in the relevant sense. It was to be expected that Kia Ora relied upon the appellants to do their work competently and independently but they were not guiding or influencing Kia Ora in the sense discussed in the cases dealing with fiduciary relationships. [34] The sense discussed in the cases dealing with fiduciary relationships was explored by the High Court in the preceding paragraphs. Relevantly, the High Court made reference to the critical feature of a fiduciary relationship as set out by Mason J in Hospital Products Ltd v United States Surgical Corp, 18 that a fiduciary agrees or undertakes to act for or on behalf of or in the interests of another person in the exercise of power or discretion which will affect in a legal or practical sense the interests of that other person. 19 [35] The High Court also noted the following: [71] It is important also to recognise the distinct character of the fiduciary obligation, which sets it apart from contract and tort. In Norberg v Wynrib McLachlin J said: "The foundation and ambit of the fiduciary obligation are conceptually distinct from the foundation and ambit of contract and tort. Sometimes the doctrines may overlap in their application, but that does not destroy their conceptual and functional uniqueness. In negligence and contract the parties are taken to be independent and equal actors, concerned primarily with their own self-interest. Consequently, the law seeks a balance between enforcing obligations by awarding compensation when those obligations are breached, and preserving optimum freedom for those involved in the relationship in question. The 16 [2001] HCA 31. 17 At [75]. 18 (1984) 156 CLR 41. 19 [2001] HCA 31 at [70].
12 essence of a fiduciary relationship, by contrast, is that one party exercises power on behalf of another and pledges himself or herself to act in the best interests of the other [footnotes omitted]. [36] Here it can be expected that the applicants relied upon the respondents to do their work competently and independently. However, it cannot be said that by providing the applicants with accountancy advice upon request that the respondents were guiding or influencing the applicants in the sense described in Hospital Products, or that the relationship between the parties was as described in Norberg v Wynrib. 20 Indeed on the evidence before me, Mr Griffiths was at all relevant times a qualified lawyer who knew at the time of signing the Letter of Engagement dated 12 September 2016 at least the nature of a charging clause and that there was a significant debt owed by the applicants to the respondents. [37] I am therefore persuaded on the evidence currently before me that there is a serious question to be tried. I also however need to consider where the balance of convenience lies. Balance of Convenience [38] I am satisfied that the balance of convenience favours the continuation of the caveats particularly in circumstances where the indebtedness is not disputed and where the applicants have not paid any money into Court. Neither has there been any undertaking offered by the applicants not to deal with the properties pending the outcome of the District Court proceedings. Neither is there any evidence from the applicants about their financial position and their ability to pay the debts to the first and third respondents. The is no evidence that the applicants have a need to deal with the properties in the immediate future. [39] I am satisfied that the application should be dismissed with Costs. 20 [1992] 2 SCR 226.