ABC Brick Sales Pty Ltd v Doyle [2011] QDC 174

1-1 [2011] QDC 174 DISTRICT COURT CIVIL JURISDICTION JUDGE ROBIN QC No 2503 of 2011 ABC BRICK SALES PTY LTD Plaintiff and GRO HOMES PTY LTD and GREGORY JOHN DOYLE Defendants BRISBANE ..DATE 08/08/2011 ORDER CATCHWORDS Land Title Act 1994 s 129(2) Leave granted to lodge a second caveat on the same grounds as one withdrawn -- 1 of 6 -- 1-2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: The court makes an order in terms of an initialled draft. It's made on an interlocutory application filed on the 27th of July 2011 in this claim which was filed a week before. It grants leave to the plaintiff to "lodge a further caveat" over land of the second defendant described in the application "on the same grounds as caveat number 713615124 under section 129 of the Land Title Act 1994." By section 129(2) "A further caveat with the same caveator can never be lodged in relation to an interest on the same or substantially the same grounds as ones stated in the original caveat unless the leave of a Court of competent jurisdiction to lodge the further caveat has been granted." A first caveat was lodged on the 8th of December 2010 claiming an equitable charge in respect of the land. The second defendant's involvement is as guarantor of the obligations of the first defendant, which is now in liquidation, to secure payment of the cost of goods to be supplied by the plaintiff company. The security arises under a guarantee which provides that "As security for payment to ABC Brick Sales of the guaranteed moneys and for its obligations generally under this guarantee the guarantor charges in favour of ABC Brick Sales the whole of the guarantor's undertaking, property and assets (including without limitation all of the guarantor's interests, both -- 2 of 6 -- 1-3 ORDER 1 10 20 30 40 50 60 legal and beneficial and freehold and leasehold land) both current and later acquired. The effectiveness of such a provision to charge unspecified real estate is established by Clark v Raymor (Brisbane) Pty Ltd [No 2] [1982] Queensland Reports 790. That first caveat was withdrawn on the 20th January 2011 out of consideration for Mr Doyle in what Ms Finlayson's affidavit suggests may have been a mistaken understanding (attributable to payments going to various recipients) that the whole of indebtedness payable by that time had been discharged. Whether or not that was so, further supplies of goods were made in the following months and additional indebtedness which has not been discharged arose. The plaintiff lodged a new caveat which, perhaps necessarily, has the appearance of offending section 129, on the 19th July 2011. A requisition has issued from the Land Titles Office on the following date calling for a response by the 17th August 2011. The requisition refers to section 129 and goes on "Either a Court copy of the leave to lodge the caveat or a satisfactory statement supporting the argument the caveat is not on the same, or substantially the same grounds, as caveat number 713615124 must be deposited. If either of the above is not deposited within 7 days of the issue of this requisition the above caveat will be rejected." -- 3 of 6 -- 1-4 ORDER 1 10 20 30 40 50 60 In my opinion the case for granting the relief which the plaintiff needs is a compelling one. There's nothing mischievous or vexatious about the plaintiff seeking to protect its security interest. On the material before the court there is genuine indebtedness underlying the plaintiff's claim. An example of the Court granting leave is Field v. Gaborit [2002] QSC 466, which exhibits a history more confusing than the present with three lodged caveats and Mullins J granting leave for a fourth. That was done on the basis that it made it unnecessary for her Honour to decide whether leave could be granted nunc pro tunc under section 129 of the Act in respect of either the second or the third caveats. Mullins J left that as an open question on the basis that she considered the preferable course was for leave to be granted for a fresh caveat to be lodged on the same grounds as the first one. While the Registrar's requisition appears to entertain the possibility that leave nunc pro tunc could be granted for purposes of section 129 subsection (2), and while the court should not foreclose that possibility, making an order with retrospective effect may pose a risk to the plaintiff's interest seems to me one best avoided. The crucial language in section 129(2) is that the new caveat "can never be lodged" unless leave "has been granted". That suggests to me that the leave ought to be obtained before the -- 4 of 6 -- 1-5 ORDER 1 10 20 30 40 50 60 lodgement. There's a lot of law in various contexts as to when leave nunc pro tunc is available. There are limits. I agree with her Honour that it's probably preferable to avoid getting involved in that issue. Ms van Hoeyen, who argues the application on which Mr Doyle hasn't appeared, although he has been served, presents the view that the additional expenditure flowing from a third caveat having to be prepared and lodged would be quite modest, being essentially lodgement fees of about $180 should the Registrar demand them. The court has to be careful about purporting to exercise jurisdiction which it does not have in the context of caveats as the recent decision in CAV Queensland Pty Ltd v. Fitzgerald [2011] QDC 104 reminds us. The court there had no jurisdiction to entertain their application for removal of a caveat the proceeding was ordered to be transfered to the Supreme Court. The situation would have been otherwise if there was an underlying proceeding within the court's jurisdiction as conferred by section 68 of the District Court of Queensland Act 1967. See Boyle v. Pacimar Trading Pty Ltd [2004] QDC 566. In this case the court's jurisdiction is clear. There's a money claim for purposes of section 68(1)(a) although it comes well down the list of relief sought, well after the principal claim for declaratory relief of a kind which comes within subsection (1)(b)(xiii). -- 5 of 6 -- 1-6 ORDER 1 10 20 30 40 50 60 As Ms van Hoeyen says, other relief relevant is claimed, specifically to gain possession of the land that also appears to come within this Court's jurisdiction. The order grants costs to the plaintiff of its application filed on the 27th July 2011 on an indemnity basis. That requires justification, especially as argument might be made about the appropriateness of the plaintiff obtaining all of the costs that it seeks. It might be contended, for example, that the first caveat could have been left in place rather than being voluntarily withdrawn. The guarantee document obliges Mr Doyle to pay all costs in connection with the guarantee, including "the exercise or attempted exercise of any power, right or remedy under this guarantee" and there are corresponding documents binding the first defendant as "customer" in the contractual arrangements made by it. Those costs the guarantor must pay "on an indemnity basis". It’s warranted in the circumstances for costs to be ordered on that basis, Mr Doyle has had ample notice from the terms of the application that that's the costs order proposed against him. Order as per initialled draft. MS VAN-HOEYEN: Thank you, your Honour. ----- -- 6 of 6 --