E G & J Johnson Pty Ltd v Zhithel Pty Ltd [1998] QSC 137

~5113 L~<-p~ State Reporting 5( ~g/137 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 JONES J Writ No 130 of 1992 E G & J JOHNSON PTY LTD V. ZHITHEL PTY LTD OS No 3 of 1998 IN THE MATTER of the Land Title Act 1994 and IN THE MATTER of a caveat lodged by ZHITHEL PTY LTD ACN 010 775 747 CAIRNS .. DATE 03/07/98 JUDGMENT 1 REVISED COPiES ISSUED State Reporting Bureau . Date J I 7. .L.g._~_ ... __.._. -- 1 of 3 -- 030798 D.1 T1/FEW M/T CNS482/98 (Jones J) HIS HONOUR: On 12 October 1992 a caveat was lodged over land described as lots 810 and 811 on plan number C5041 in the county of Lynd, parish of Chillagoe, being the land contained in certificates of title reference 20783171/2, which land together with improvements comprised the Post Office Hotel Chillagoe (lithe land") . The land was then registered in the name of the caveator, Zhithel pty Ltd (IIZhithel"), the principals of that company are Mr and Mrs Marosvary. The lodging of the caveat was to prevent the exercise of a power of sale by the mortgagee E G and J Johnson Pty Ltd ("Johnson") which had sold the land to Zhithel and provided them the finance. The caveator alleged that the sale had been inducep by fraudulent 10 misrepresentation, and sought rescission of the contract of 30 sale and the setting aside of the mortgage. Johnson sued for moneys due and owing under the mortgage. Johnson also went into possession on 1 July 1997 and has now contracted to sell the hotel, acting as mortgagee in possession. The settlement of that sale is imminent. Following a series of proceedings, final· judgments were entered in the two actions instituted by the parties - actions 40 104 of 1992 and 130 1992} Final judgments were entered in 50 these actions on 26 May 1997. All the disputes between the parties were resolved as money claims, and in the resulting set-off Zhithel was indebted to Johnson under the judgments, in a sum exceeding $400,000. 2 JUDGMENT 60 -- 2 of 3 -- 630798 D.1 T1/FEW M/T CNS482/98 (Jones J) I have been informed that the claim for rescission made by Zhithel was abandoned shortly prior to the first hearing of these claims in August of 1994. However, in its counterclaim Johnson had not sought any relief of the removal of the caveat. In any event, the adjudication on 26 May 1997 put an end to any claim by Zhithel to have an interest in the land and therefore any support for ·the caveat. This application is brought pursuant to section 127 of the Land Title Act 1994 for the removal of the caveat. The application is made ex parte and I note that I have power pursuant to subsection 2 of the section to make the order, notwithstanding that the caveator has not been served with the application. The material before me discloses that the caveator is aware of the sale and that a formal demand was made to Zhithel to sign a Request for Withdrawal of the caveat but that demand has been ignored. The caveator therefore is aware of this 10 20 30 impending sale. It is clear that the caveator no longer has 40 an interest in the land to sustain the caveat, and in all the circumstances the caveat should be removed. I make the order in the terms of the draft initialled by me and placed with the pape~s. I have deleted paragraph 10. 50 60 3 JUDGMENT ~. ' -- 3 of 3 --