State Reporting Bureau

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1 J2O03] osc State Reporting Bureau Queensland Government Department of Justice and Attorney-General Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. REVISED COPIES ISSUED State Reporting Bureau SUPREME COURT OF QUEENSLAND Date: August, 2003 CIVIL JURISDICTION McMURDO J No 2558 of 2002 SUNSHINE COAST REGIONAL GROUP APPRENTICES LIMITED ACN Plaintiff and ROBERT JAMES PURVIS Defendant And ALISON ROBYN GROSSE Third Party BRISBANE..DATE 2/07/2003 JUDGMENT WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. 4th Floor, The Law Courts, George Street, Brisbane, Q. 00 Telephone: (07) Fax: (07)

2 T23/JTR34 M/T 3/2003 (McMurdo J) HIS HONOUR: This is an application by the plaintiff in these proceedings for an order that, pursuant to section 29 of the Land Title Act 994, it have leave to lodge a second caveat over certain land at the Sunshine Coast. The application is necessary because of the lapse of an earlier caveat. That caveat lapsed not because the plaintiff failed to bring proceedings as required but because no notice was given on its behalf of those proceedings to the Registrar as was required by section 26. The proceedings have been prosecuted to a fairly advanced stage and both parties have proceeded upon the premise that the caveat, that is the caveat lodged last year, is still effective. Indeed the defendant has counter-claimed for the removal of the caveat. The interest claimed by the caveator is that of an equitable mortgagee. The mortgagor is said to be the defendant although he is but one of two persons who are registered as proprietors of the fee simple. The other registered proprietor is shown as Alison Robyn Kirk-Jones who is one and the same as Alison Robyn Grosse who is represented here today by Mr Dunning. Upon the plaintiff's case, the beneficial entitlement to the fee simple has passed to Mr Purvis and the plaintiff claims an equitable mortgage over the entirety of the fee simple. 2 JUDGMENT 60

3 T23/JTR34 M/T 3/2003 (McMurdo J) I accept the evidence to the effect that the default in notification to the Registrar was due merely to oversight by the plaintiff's solicitors. As I have already mentioned, each of the parties to the principal proceedings, that is, the plaintiff and Mr Purvis, have continued upon the false assumption that there was an effective caveat. If the only interests to be considered were those of the plaintiff and defendant in the proceedings, it seems to me to be a fairly clear case for the making of an order as sought. Indeed, after the defendant was served with this application, 20 as I directed last week, his solicitors have written to the plaintiff's solicitors saying that he has no objection to an order being made in accordance with the application as long as there is no order as to costs. However, there are other interests at least potentially affected by the order sought. When this matter was originally brought on for hearing last week, I directed that, in addition to the defendant, other parties be served with the application. One of those parties was Suncorp. It is registered still as a mortgagee although I was told last week that there is no outstanding debt secured by that mortgage and it would not be affected by the application. It has been served and has indicated that it has no opposition to the order sought. The other party upon whom I directed service was Ms Grosse. Her interest comes, it seems, not so much from her being one 3 JUDGMENT f% ou

4 T23/JTR34 M/T 3/2003 (McMurdo J) of the registered owners but from the fact that she is a judgment creditor of Mr Purvis from proceedings in the District Court. She is seeking to enforce that judgment by, amongst other means, an enforcement warrant to cause Mr Purvis' interest in this land to be sold. That warrant has been registered against this land so that the matter is now affected by Sections 6 through 20 of the Land Title Act 994. On her behalf, Mr Dunning submitted that an order ought not to be made which would permit a second caveat to be lodged for it would have, that is a second caveat would have, at least a potential impact upon her interest as judgment creditor. It was submitted that it could be something which would tend to depress the interests of prospective purchasers and it therefore had some potential impact upon her position. It is relevant in that context to assess the relative positions of a purchaser under any sale made pursuant to the enforcement warrant and the plaintiff's position. Section 20 of the Land Title Act permits the Sheriff, Registrar or Clerk of the relevant Court to execute an instrument of transfer to the purchaser and by subsection (2) it is provided that on registration of the transfer the transferee becomes the registered owner of the lot subject to registered interests and to "equitable mortgages notified by caveat lodged before registration of the writ of execution". 4 JUDGMENT 80

5 T23/JTR34 M/T 3/2003 (McMurdo J) It is unnecessary I think in the present case to consider whether such a transferee would become registered subject to the plaintiff's alleged equitable mortgage which was notified by caveat lodged before registration of the writ of execution but which had also lapsed before that registration. It is clear enough, however, that the lodgment of a second caveat which would post-date the registration of the writ of execution is not a matter which would affect a transferee's position according to section 20. The transferee might or might not be subject to the plaintiff's equitable mortgage, 20 but that would be according to the effect or otherwise of the first caveat - that is, the lapsed caveat. It would not turn upon whether a second caveat had been lodged as that would post-date the registration of the so-called writ of execution - that is, of the enforcement warrant. It seems to me, therefore, that there is no potential detriment to a purchaser of Mr Purvis' interest, being a purchaser who buys under a sale made under the enforcement warrant, that could come from the lodgment of a second caveat. It is clear also that the second caveat would not preclude such a sale itself. There is still Mr Dunning's suggestion that the existence of such a second caveat might have some dampening effect upon the interest of a prospective purchaser. Accepting that there is that potential, it has to be weighed against the plaintiff's interests. 5 JUDGMENT 3ft

6 T23/JTR34 M/T 3/2003 (McMurdo J) Now the plaintiff might be given some alternative protection by an interlocutory injunction granted against Mr Purvis in lieu of a caveat. However, the particular position of an equitable mortgagee needs to be kept in mind. Equitable mortgagees can obtain some specific protection through the lodgement of the caveat as section 20, subsection 2 plainly demonstrates. It is not beyond any possibility that Mr Purvis may have other creditors and, in turn, judgment creditors and the plaintiff's position might need to be protected in relation to those persons. To explain that, the property or Mr Purvis' interest in it may not be sold under this enforcement warrant because perhaps the judgment debt might be recovered by some other means. But yet the plaintiff might find itself in contest with other creditors of the defendant. That, of course, involves a degree of speculation but it seems to me that there are situations which might present themselves for which the plaintiff would be better protected by a caveat than by an interlocutory injunction against Mr Purvis. At* It is also, I think, not unrealistic to suggest that third persons might be better protected by a caveat being, as Mr Collins put it, a notice to the world than they might be protected by an interlocutory order made against Mr Purvis. 60 If there was some substantial risk to the position of Ms Grosse from the lodgement of a second caveat, I would be minded to refuse this application as it is made necessary 6 JUDGMENT t3u

7 T23/JTR34 M/T 3/2003 (McMurdo J) because of a default on the plaintiff's side. However, I do not think that the prospect of any substantial detriment to Ms Grosse is sufficiently established and it seems to me that the plaintiff should be given the order which, apart from a consideration of her interests, it ought to have. The result is that I will order that pursuant to section 29 of the Land Title Act (994) the plaintiff will have leave to lodge a second caveat over lot 0 on registered plan 4 in the County of Canning, Parish of Mooloolah, title reference 238 on the same grounds as caveat HIS HONOUR: As to costs, the application of course was required because of the plaintiff's default in complying with the Land Title Act. Although the application has ultimately succeeded over the objection of Ms Grosse, it seems to me that the basis upon which her objection was put was reasonable. I do not consider that in these circumstances she ought to be burdened with her own costs of appearing today. Accordingly, I shall order the plaintiff to pay the costs of the respondent, Alison Robyn Grosse, to be assessed upon a standard basis. HIS HONOUR: Last week I issued an interim order to protect the plaintiff's position. That order expires at 4 p.m. today. 7 JUDGMENT 60

8 T23/JTR34 M/T 3/2003 (McMurdo J) It is necessary in my view for that order to be extended until 4 p.m. tomorrow, 22 July 2003 to give the applicant time to lodge a second caveat. Accordingly, I will order that until 4 p.m. on the 22nd of July 2003, the respondent, Robert James Purvis, be restrained from disposing of charging, mortgaging or in any other way dealing with his legal or equitable interest in the land described as lot 0 on registered plan 4 in the County of Canning, parish of Mooloolah, title reference 238 and that is upon the same undertaking as to damages as was given in my order of 7 July JUDGMENT 60