Araf Capital Funding Pty Ltd v Ogle [2004] QSC 204

State Reporting Bureau JgoOA^j QSC £Of Queensland Government Department of Justice and Attorney-General 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 HOLMES J REVISED COPIES ISSUED State Reporting Bureau Date: 22 June, 2004 No BS3799 of 2004 ARAF CAPITAL FUNDING PTY LTD (ACN 073 Plaintiff 023 926) and DONALD GORDON OGLE Defendant BRISBANE ..DATE 11/06/2004 JUDGMENT WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. 1 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 -- 1 of 4 -- 1 HER HONOUR: This is an application for a further caveat to be lodged over land, made pursuant to section 129 of the Land Titles Act. The caveatable interest is said to be created by clause 4 of an agreement called "Mandate to Act" which creates a charge over the respondent's land in favour .of the applicant, in order to secure payment of brokerage fees. The agreement itself was for the payment of fees by the respondent in respect of the applicant's obtaining finance. As part of clause 4 the respondent consents to the lodging of a caveat to support the applicant's charge. The caveat was lodged over five parcels of land which are those comprised in what is described in the Mandate to Act as Lot 3 on registered plan 208443 County of Stanley Parish of Parker comprised in title reference 15959246. The caveat was lodged on the 13th of April 2004. On the 19th of April 2004 the applicant was given notice pursuant to section 126(2) of the Land Title Act requiring it to commence its proceedings within 14 days. That was duly done. A claim and statement of claim were filed on the 29th of April 2004. The other requirement, however, under section 126(4) was notification of the registrar within 14 days that the proceeding had been started. The applicant's material showed that it employed a firm of process servers to lodge the notice. In fact that enterprise 11062004 T9/LM18 M/T 2/2004 (Holmes J) 10 20 30 40 50 2 JUDGMENT 60 -- 2 of 4 -- failed to do so within 14 days. It did not in fact file the notice until the 5th of May which was one day outside the required 14 days. It is certainly not a significant oversight but its implications, of course, are that the applicant is now in a position of having to make this application for leave to lodge another caveat . Taking as the relevant test the same, effectively, as that for an injunction - the seriousness of the question to be tried and the balance of convenience - the material before me demonstrates that there is a caveatable interest. So far as I can discern from the material which is before me the balance of convenience favours the granting of leave. The current title search shows the existing caveat as still being registered on the title. There is no reason to suppose, therefore, that the respondents would have any cause to act as if it were not still there and lodged. There seems to be no risk that any dealings with the property will be suddenly truncated as a result of any apprehension that the land can be dealt with without regard to it. So for all intents and purposes the respondents are presumably proceeding as if the caveat remains on the land. It is unlikely that they will suffer any sudden detriment as a result of a further caveat being lodged. But, of course, the application has been heard ex parte for the reasons that I gave before and it does seem essential to 11062004 T9/LM18 M/T 2/2004 (Holmes J) 1 10 20 30 40 50 3 JUDGMENT 60 -- 3 of 4 -- me that the respondent be heard if it so wishes as to why the further caveat should not be lodged. It is with that in mind that the order now requires service of copies of the application, the affidavit of Ms Wickman, the affidavit of Mr Meadmore, the order, the transcript of argument, the reasons for judgment; and I will add to that, counsel's written submissions. For those reasons I will make the order as per the draft with the necessary amendments to ensure that those items are all provided . 11062004 T9/LM18 M/T 2/2004 (Holmes J) 1 10 20 30 40 50 4 JUDGMENT 80 -- 4 of 4 --