Benmar Properties Pty Ltd, Re; Re Makucha's Caveat [1991] QSC 305

IN THE SUPREME COURT OF QUEENSLAND Counsel: O.S. No. 962 of 1991 IN THE MATTER of The Real Property Acts - and - IN THE MATTER of BENMAR =-P=R=O=P-=E=R.:.:T::..:I=E=S=-----=-P-=Tc.:::Y:..:.'---...::L=T=D=-"--. re MAKUCHA'S CAVEAT JUDGMENT - de JERSEY J. Delivered the 24th day of October, 1991 Mr. Gore Q.C. with Mr. Eliadis for applicant Mr. Callinan Q.C. with Mr. Stewart respondent Hearing date: 23rd October, 1991 -- 1 of 4 -- IN THE SUPREME COURT OF QUEENSLAND o.s. No. 962 of 1991 IN THE MATTER of The RealProperty Acts - and - IN THE MATTER of BENMAR =P=R=O=P~E=R=T=I~E=S __ ~P~T~Y=-=--·--~L=T=D::....;... re MAKUCHA'S CAVEAT JUDGMENT - de JERSEY J. Delivered the 24th day of October, 1991 This is an application by Benmar Properties Pty. Ltd. for removal of caveat no. K776926G lodged by the respondent Mr. Makucha over certificates of title volume 7070 folio 186 and volume 7266 folio 54. Benmar holds two registered leases over part of that land. Benmar has sold its interests under those leases, and the contract was due for completion on 15th October, 1991. The subsistence of the caveat prevents registration of the transfer. The ground of the caveat is Mr. Makucha' s interest as purchaser of the land from Partnership Pacific Ltd., a mortgagee exercising power of sale. The relevant contracts of purchase are due for completion on 13th March, 1992. Mr. Gore Q. C. who appeared for the applicant submitted first that Mr. Makucha does not need the protection given by the caveats, because in terms of his contracts of purchase, he purchases subject to the registered leases, so that -- 2 of 4 -- 2 registration of Benmar's transfer of the leases will not affect his rights. He will still take subject to the registered leases. (Under those leases, Benmar' s right to assign is not dependent upon the consent of the lessor.) Mr. Callinan Q.C., who appeared for Mr. Makucha, based his response on the allegedly unlawful use being made of the land under the leases. The leases require the use of the land for advertising sign purposes. That is not a permitted use in the relevant zone, and I proceed on the basis that the current use under the leases is unlawful. Mr. Makucha has indeed commenced an action against Benmar claiming declarations that the leases are unlawful and invalid. There is an arguable case for standing under the Day v. Pinglen Pty. Ltd. ( 1980) 148 C.L.R. 289 approach. But as Mr. Gore pointed out, removing the caveat would not affect the use of the land. Removing the caveat would not promote an illegality, as it was put. Removing the caveat would simply facilitate registration of the transfers of the leases. Mr. Makucha would still be able to claim, through court proceedings if he wished, that the leases to which his contracts of purchase subject his interest are invalid because unlawful. The object of a caveat is protection of such rights as the caveator has in relation to the land (Butler v. Fairclough (1917) 23 C.L.R. 78, 84; Lynch v. O'Keefe (1930) St.R.Qd. 74, 88-9), not to enlarge them. This caveat is unnecessary for the reasons I have already expressed. Its removal will not derogate from Mr. Makucha's interest in the land. -- 3 of 4 -- 3 Mr. Gore also submitted that because conditional, Mr. Makucha's contracts do not create interests sufficient to support a caveat. There is however reason to doubt the correctness of Bosca Land Pty. Ltd.'s caveat (1976) -Qd.R. 119- see Kuper v. Keywest Constructions Pty. Ltd. (1991) Aust. and N.Z. Conveyancing Reports 116, 121-2 and re C.M. Group Pty. Ltd. 's caveat (1986) 1 Qd.R. 381 - and I would not on that ground remove the caveat. As to the remaining submission, the balance of convenience undoubtedly favours removal of the caveat. Orders in terms of paras. 1 and 3 of the originating summons filed on 9th October, 1991. -- 4 of 4 --