Allen, Re [1991] QSC 374

TRANSCRIPT OF PROCEEDINGS State Reporting Bureau, 4th Floor, The Law Courts, George Street, BRISBANE, 0. 4000 Tel. (07) 227.4360 (Copyright in this transcript is vested in the Crown. Copies thereof mu...c:t not be made or sold without the written authority of the Director, State Repon:ing Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISD~~~ON -- ------------ SHEPHERDSON J OS No 1001 of 1991 IN THE MATTER OF THE REAL PROPERTY ACT i861 AS AMENDED. REVISED COPIES -lSS·UED ! Court Reporting Bureau ! C l Date, I"? I/~/ I "7 'T / I IN THE MATTER OF THE CAVEAT LODGED BY THIELA ROCHELLE ALLEN FORBIDDING THE REGISTRATION OF ANY INSTRUMENT AFFECTING CERTAIN LAND SITUATED AT LOT 136 SUNSET ROAD, CALOUNDRA IN THE STATE OF QUEENSLAND OR ANY ESTATE OR INTEREST THEREIN BRISBANE DATE 10/12/1991 JUDGMENT ~1- (/' 1 -- 1 of 8 -- ( 101291 JUDGMENT HIS HONOUR: This application is for a lady named Thiela Rochelle Allen to show cause why caveat No 651141N (sic) lodged by her in the Office of Freehold Land Titles at Brisbane on 28 May 1991 and affecting land more particularly 10 described as lot 136 on plan CG637 in the County of Canning, Parish of Bribie, being the whole. of the land described in Certificate of Title Volume 6854 Folio 226 should not be removed. 20 The originating summons was filed on 23 October 1991 and was first returned on 29 October 1991. The matter has not been disposed of and today it comes before me. The application has never been served personally on the respondent, Allen, to whom the originating summons is addressed. The summons 30 shows her address as 32 Speight Street, Brighton in the State of Queensland. Mr Wilson, for the applicant, has relied for service ons 100 of the Real Property Act 1861 as amended and an affidavit of service by Barrie John Munro, the solicitor for the applicant, Helmsmea~ P~y Ltd. I shall 40 come to this legislation later. I shall ~t this stage say something about the chronology. The respondent, Allen, is the registered proprietor of the fee simple of the above land. Th~ land was qubject to a so bill of mortgage to Metway Leasing Limited. The applicant contracted to buy the land from Metway Leasing Limited as mortgagee exercising power of sale. The photocopy of the contract dated 9 May 1991 is before me. It expressly shows that the vendor was exercising its power of sale pursuant to 60 rights under a registered bill of mortgage K7953 -Govt. Printer, Old. 2 10 30 40 50 60 -- 2 of 8 -- ( ' JUDGMENT This mortgage appears in the Second Schedule on the photocopy Certificate of Title Volume 6854 Folio 226 now before me. According to the contract, the date of settlement for completion was 27 May 1991. An affidavit by 10 Vernon Lloyd Scott, the project manager of. the applicant, confirms that settlement was effected on 21 May 1991. Solicitors Munro Thompson acted for the applicant in the settlement. 20 It appears that the relevant transfer documents and title deed were lodged in the Titles Office on 22 May 1991. The next day it was found that a caveat No K645952D hap been lodged by the respondent, Allen, on 23 May 1991. This caveat had a dealing number later in time than the transfer to the 30 applicant. That caveat, a photocopy of which is before me, shows that the respondent claimed "an estate in fee simple as registered proprietor" on the grounds "oral agreement between. the registered proprietor and the mortgagee that the mortgagee will not complete exercise of powe~ of sale prior 40 to midnight on 26 May 1991". This caveat, a photocopy of which I have, shows the address of the registered p~oprietor as "32 Speight Street, Brighton". This information appears beside a note in the margin, "FULL NAME AND ADDRESS FOR SERVICE OF NOTICE". The photocopy of this caveat showed 50 that it was signed by GR Redhead or GA Redhead, the solicitor for the respondent. This caveat was withdrawn on 11 June 1991 following lodgement of a letter of withdrawal on 24 May 1991. ---=6c-=- 0 ---+--±-f~,,,,,i..t,--was not the end of the matter beeause on 2 8 Hay 19 -Govt. Printer, Qld. 3 10 20 30 40 50 60 -- 3 of 8 -- ( 101291 JUDGMENT the respondent lodged another caveat dealing No K651141N and this is the caveat the removal of which is now sought. Once again this caveat shows that the respondent claimed an estate in fee simple as registered proprietor and again 10 shows her name and address for service at 32 Speight Street, Brighton. The grounds of the second caveat are expanded and read: 20 "Oral agreement between the registered proprietor and Metway Leasing Limited ... that Metway Leasing Limited would not complete exercise of power of sale prior to midnight on 26 May 1991. The registered proprietor tendered the moneysowing to Metway Finance Limited on 24 May 1991". There is evidence before me to snow tha.t' on 2T May 1991. and not 24 May· bank cheque in the sum of $330,000 was tendered. The caveat remains on the title and Mr Wilson, who ha.s appeared for the applicant this morning, after informing me that the caveat 10 30 30 is non-lapsing, has persisted with his application. The respondent did not appear although her name was called outside the Court. I now come to the matter of service. An affi°davit of 40 40 50 60 Mr Munro filed on 4 December 1991 shows that he personally, on 2 December 1991, did post to the respondent at 32 Speight Street, Brighton, a letter dated 2 December 1991 and certain other documents. That letter rioted that the return date of the summons was 10 a.m. on Tuesday, 10 December 1991. I mention in passing it is true that the Court did not commence until 10.38 this morning due to a prior meeting .. At that time the callover occurred and there was no mention of an appearance by the respondent at that stage. -Govt. Printer, Old. 4 50 60 -- 4 of 8 -- ( ', . ' 1. 101291 JUDGMENT I do not propose to detail all the other material enclosed with the letter. I have a photocopy of the document lodged with Australia Post by Mr Munro. It was addressed to "Thiela Rochelle Allen, 32 Speight Street, Brighton 4017". 10 The contents were described as "envelope containing letter and documents". A fee was paid. A note in the top left-hand corner shows that "delivery to the addressee personally can only be guaranteed if the 'acknowledgement of delivery' option is obtained". This option was not 20 exercised. The matter has dragged on and I gave Mr Wilson leave to file and read a further affidavit from Mr Munro sworn today. This document admittedly contains hearsay information, part 30 of which consists of an interim report from certain process servers. This report shows that there is no No 32 in Speight Street. The situation has been reached where the respondent has an onus, if she had appeared, of satisfying me that she had at least a colourable title, to use the 40 phrase appearing in Re Jorss' Caveat (1982) QdR 458 at 464. 50 Before I turn to that aspect of the matter I should say that s 100 of the Real Property Act of 1861 includes the following: " ... every such caveat shall be signed by the person by whom or on whose behalf the same is lodged or by his solicitor, known agent or attorney and all notices relating to such caveat ~r a~y P!~cee~~n_g_s in respect thereof shall be servea either at the place of address mentioned in such caveat or at the office of the solicitor, known agent _or attorney who shall have signed such caveat and such service shall be deemed sufficient service of the notice as against all persons who -~ 6 =0 -1----1~v--cla:i:-m under the sai · -Govt. Printer, Old. 5 10 20 30 40 50 60 -- 5 of 8 -- ( 101291 JUDGMENT this section may be sent through the post in apre-paid registered letter addressed to the personto b~ served therewith and such sending shall besufficient service thereof." I pause to say that an attempt was made to serve the relevant documents on Mr Redhead but he informed Mr Munro's '. 10 10 20 30 firm that he had no instructions to accept such service. As I read the above passage from s 100, there is no need .to inquire about authority to accept service. In my view, it would have been sufficient simply to have served the documents at the offices of the solicitor who signed such caveat. Unfortunately, this was not done. It is my view that s 100, as I have read it out, does permit service of the documents by Mr Munro in a pre-paid registered letter addressed to the. person to be served. There have been-changes in the manner in which Australia Post nQw operates. The lodgement document that I have may or may not be "pre-paid registered post". It is apparent that the charge paid to Australia Post was $8.90. I also have Mr Munro's sworn affidavit that he did p·ost the 30 40 40 50 60 material "by pre-paid registered mail". I see no reason to doubt the veracity of what Mr Munro has sworn to, and as the section says "such sending sl).all be sufficient service thereof", I propose to take a robust view ind act upon the service on 2 December 1991. There is one other matter on which I wish to comment and that is this: it is true that the respondent holds the legal estate in the land by virtue of the fact that she is 50 the registered proprietor, whereas the applicant_ at present holds 4 60 -Govt. Printer, Qld. 6 -- 6 of 8 -- 101291 JUDGMENT equitable estate. However - _and this may seem to be a fine distinction - when one looks at the grounds on which the second caveat is based, the respondent is saying, in effect, that she had an oral agreement with the mortgagee that it 10 would not exercise its power of sale before midnight on the day before the sale was due to be ·settled. Although she was the registered proprietor, it appears to be implicit in what she says in her caveat that Metway Leasing had properly exercised its power of sale. It appears to me that she was 20 attempting to set up some form of equitable estate based on a right to buy back the property by, in effect, redeeming the mortgage. There is evidence before me that Mr Scott first became aware 30 of the claim of the respondent to be able to redeem the property only after the purchase had been settled on 21 May. I refer to paragraph 17 of his affidavit in which he says that a Mr John George of Metway Leasing, with whom he had a conversation, said that Metway had not given to the 40 respondent any undertaking to allow her to pay out.the 10 20 30 40 mortgage at any t_ime until midnight on 26 May. It seems to ;me th t so 60 . -~ ·. -- .. the address "32-§peignt Street", ap~aringpnl:pth caveats apdwhich cannot be . . . . . . . . identified by any premises in the street, shows that·the respondent is endeavouring to do everything she can to frustrate the ultimate completion of the sale to the applicant. By completion, I mean the applicant being able to have its title registered in the Office of the Registrar of Land Titles. -Govt. Printer, Qld. 7 50 60 -- 7 of 8 -- JUDGMENT in tne Office of Freehold Land Titles against the whole of the land d.escribed in Certificate of Title Volume 6854 Folio 226 be removed, and I further order the respondent, Thiela Rochelle Allen, to pay the applicant's costs of and 10 incidental to the application to be taxed. 20 30 40 50 60 • -Govt. Printer, Qld. 8 1. 10 30 40 50 60 -- 8 of 8 --