Anford Pty Ltd v GCI Properties Pty Ltd & Anor [1999] QSC 272

37077 State Reporting Sc r7 /~7:J.. .rl' k" Bureau 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. . SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION MUIR J No 56355 of 1999 ANFORD PTY LTD (ACN 010 812 932) and GCI PROPERTIES PTY LTD (ACN 059 429 248) and CASABLANCA AUSTRALIA PTY LTD (ACN 010 980 435) BRISBANE .. DATE 29/07/99 JUDGMENT 1 REVISE;) COPIES ISSUED State Reporting Bureau Date/.l / Y-I Plaintiff First Defendant Second Defendant ·Itll Floor, Tile L:nv Courts. Georl.'e Slreet. Brishalle. O. 4()()() T,.I,... ""n,'· ((171 1'17 .:t1r.t1 I~ .. ~. 111"1' 1""1 ee11 -- 1 of 4 -- 290799 T16/JAP22 M/T 5142/99 (Muir J) HIS HONOUR: The application before me is by the first defendant lessor to remove a caveat lodged by a lessee plaintiff. The sole relief apart from costs sought on the application is· that the caveat "be removed pursuant to section 127 of the Land Title Act 1994 on the grounds that it was lodged in contravention of section 129 of the Land Title Act 1994." Section 129 provides: 10 "If a caveat lapses or is withdrawn, cancelled or 20 removed for a lot, the person who was the caveator may lodge another caveat for the lot on the same, or substantially the same, grounds only with the leave of the Court of competent jurisdiction." The respondent lodged a prior caveat, which lapsed, stating as its grounds a parole agreement made between caveator as lessee and GCI Properties Pty Ltd as lessor which has been partly performed. That may not be quite right; I have some difficulty in deciphering the grounds claimed but it is to that effect. The ground now relied on to support the caveat is "pursuant to an estoppel arising by oral representation by which the caveatee is obliged to execute a lease in favour of the caveator." It was submitted by Mr Radcliff on behalf of the applicant in reliance on decisions in New South Wales and Victoria that the grounds advanced in the two caveats were "substantially the same." 2 JUDGMENT 30 40 50 60 ( -- 2 of 4 -- 290799 T16/JAP22 M/T 5142/99 (Muir J) His argument focussed on the interest claimed as the thrust of· the decisions on which he relied (Gurwitz v Gurwitz (1988) v. Conv R 54-317 and Taylor v Commonwealth Development Bank of Australia (1992) ANZ Conv Rep 161) were to the effect that the prohibition against lodging a second caveat was against lodging a second caveat where the interest claimed was substantially the same as that claimed in the first. 10 The relevant legislation, it seems, did not focus as the 20 Queensland legislation does on the question of the grounds relied on to support the caveats. The second caveat by way of contrast with the first does not rely upon an agreement but upon the obtaining of equitable relief. It gives rise to quite a different cause of action or basis of claim to that arising under the ground advanced in the first caveat. Accordingly, the application must 30 fail. It is therefore unnecessary for me to address various other points that were raised by Mr Radcliff in support of a 40 contention that leave to lodge the second caveat should be denied. Accordingly, I dismiss the application. HIS HONOUR: On the question of costs the application failed on the basis which I have just explained. That being the case it follows that the application could not have been successful. The trial Judge will not be in a position to 3 JUDGMENT 50 60 -- 3 of 4 -- 290799 T16/JAP22 M/T 5142/99 (Muir J) arrive at a different conclusion. Accordingly, there is no point in reserving the costs. I order that the respondent's costs of and incidental to the application be the respondent's'costs in the cause. I make that order in case it is discovered in the course of any trial should one take 10 place that there was no merit in the contentions being put forward by the respondent. HIS HONOUR: Well, I certify the action as one which ought to be tried speedily. c 30 HIS HONOUR: I order that any application by the respondent to join any other person or corporation as a defendant or defendants in the action be made within seven days of r" \ today's date. I\ 40 (~ t 50 60 4 JUDGMENT -- 4 of 4 --