Carew-Reid v First Company Mortgage Home Loans Pty Ltd [2006] QCA 189

1 SUPREME COURT OF QUEENSLAND CITATION: Carew-Reid v First Company Mortgage Home Loans P/L [2006] QCA 189 PARTIES: JOHN HASTINGS CAREW-REID (appellant/respondent) v FIRST COMPANY MORTGAGE HOME LOANS PTY LTD ACN 104 268 448 (respondent/applicant) FILE NO/S: Appeal No 2368 of 2006 SC No 663 of 2006 DIVISION: Court of Appeal PROCEEDING: Application to Strike Out ORIGINATING COURT: Supreme Court at Brisbane DELIVERED EX TEMPORE ON: 2 June 2006 DELIVERED AT: Brisbane HEARING DATE: 2 June 2006 JUDGES: Williams and Holmes JJA and Helman J Separate reasons for judgment of each member of the Court, each concurring as to the orders made ORDER: Notice of Appeal struck out with costs CATCHWORDS: REAL PROPERTY – GENERAL PRINCIPLES – INCIDENTS OF ESTATES AND INTERESTS IN LAND – OTHER INTERESTS IN LAND - Where the respondent was the registered proprietor of a property subject to a mortgage in favour of the applicant – upon breach of the mortgage agreement the applicant took steps to exercise power of sale – where the respondent had placed a caveat on the property claiming an improper exercise of the power of sale – whether the caveat should have been removed by a Supreme Court Judge COUNSEL: N H Ferrett for the applicant The respondent appeared on his own behalf SOLICITORS: Cooper Grace Ward for the applicant The respondent appeared on his own behalf -- 1 of 3 -- 2 WILLIAMS JA: On the 21st of March 2006, John Hastings Carew- Reid filed a notice of appeal against an order of Justice Philippides made on the 23rd of February 2006. By that order, her Honour ordered that a caveat lodged by Carew-Reid over property at 109 Red Oak Drive, Tallai be removed. Carew-Reid had been the registered proprietor of that property which was subject to a mortgage in favour of the current applicant, First Mortgage Company Home Loans Pty Ltd. Consequent upon breach of that mortgage agreement, First Mortgage Company took steps to exercise power of sale. The caveat which was dated the 11th of October 2006 claimed an interest on the basis that there was an improper exercise of the power of sale. The matter first came before Justice Fryberg, but at the request of Carew-Reid it was adjourned. It then came before Justice Philippides and there was an extensive hearing before her Honour. The transcript goes for many pages and discloses that Mr Carew-Reid was given every opportunity of advancing reasons in support of the caveat. Ultimately for reasons which her Honour gave, she concluded that the relief to which Carew-Reid was entitled, if anything, was damages. She came to the conclusion that on the balance of convenience the caveat ought to be removed. I can see no error of law in her Honour's reasons. The grounds stated in the notice of appeal are in the main spurious and raise issues of fraud involving persons and -- 2 of 3 -- 3 entities who are not parties to the appeal. The Court of Appeal could not on a hearing of the appeal embark upon a consideration of those matters. Those matters may entitle Carew-Reid, if established by evidence, to relief. If there is substance in the allegations he makes he would have an entitlement to damages, but that does not mean that the order removing the caveat was wrong. I should also point out that, consequent upon the removal of the caveat by the order of Justice Philippides, the purchasers pursuant to the contract of sale resulting from the mortgagee exercising power of sale have become registered proprietors of the land in question. There is in my view no substance in any of the grounds of appeal. It is clearly an abuse of process and should be struck out with costs and I would so order. HOLMES J: I agree. HELMAN J: I agree. WILLIAMS JA: Well, the order is that the notice of appeal is struck out with costs and I direct the Registrar to forward a copy of those reasons for judgment to the appellant Carew-Reid at his address for service. ----- -- 3 of 3 --