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Von Risefer v Permanent Trustee Company Pty Ltd

 

[2005] QSC 63

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

HELMAN J

No 9123 of 2003

EUSTACE VON RISEFER

First Plaintiff

and

 

ELIZABETH VON RISEFER

Second Plaintiff

and

 

GOLD COAST BARRAMUNDI P/L TRADING AS SATOR AUSTRALIA

Third Plaintiff

and

 

PERMANENT TRUSTEE COMPANY PTY LTD

First Defendant

and

 

LATROBE HOME LOANS AUSTRALIA PTY LTD

Second Defendant

and

 

MACGILLIVRAYS SOLICITORS

Third Defendant

and

 

ROBERT EDWART HALL

Fourth Defendant

and

 

ELIZABETH MARY HALL

Fifth Defendant

and

 

STATE OF QUEENSLAND

Sixth Defendant

BRISBANE

DATE 11/03/2005

JUDGMENT

HIS HONOUR: This is an application under rule 293 of the Uniform Civil Procedure Rules 1999 in a proceeding begun on 14 October 2003. On 16 August 2004, the plaintiffs' claims against the other five defendants were dismissed by an order of Atkinson, J. The sixth defendant, whose notice of intention to defend was filed on 11 November 2004, seeks summary judgment of dismissal of the plaintiffs' claim against it.

The application came before me first on 1 and 2 February 2005 and briefly on 3 February 2005 when further hearing of the application was deferred until 7 March 2005. I have now heard full argument on the application from Mr Clarke, counsel for the sixth defendant, and from the second plaintiff, who made submissions on behalf of herself and the other plaintiffs. On 2 February 2005, I ordered that the name of the sixth defendant in the title of the proceeding be amended to read “State of Queensland”, as the sixth defendant had originally been wrongly designated “Department of Natural Resources & Mines”. The application was originally directed at the plaintiffs' statement of claim attached to their claim filed on 14 October 2003, but as the hearing of the application progressed, the argument was directed to later versions of the claim and statement of claim filed on 28 February 2005.

The plaintiffs' claim against the sixth defendant arose from actions of the Registrar of Titles in removing caveats forbidding the registration of any instrument affecting lot 17 on registered plan 846050 in the County of Ward, Parish of Barrow, City of Gold Coast, title reference 18493233, of which the first and second plaintiffs were the registered owners of an estate in fee simple as joint tenants and in permitting the registration of a transfer of the land to the fourth and fifth defendants by the first defendant as mortgagee exercising the power of sale under a mortgage. In the claim the plaintiffs' case is specified as one of a breach of duty of care. In the statement of claim, paragraphs 51 to 54 and 67, the terms of which I shall set out later, contain the essential allegations relied on against the sixth defendant.

It is not in dispute that three caveats were lodged forbidding the registration of any instrument affecting the land: no. 704118262 lodged on 20 June 2000 by the first and second plaintiffs, no. 704214272 lodged on 26 July 2000 by a company named Sator Aus Pty Ltd, and no. 704378901 lodged on 20 October 2000 by the first and second plaintiffs. The Queensland Land Title Register shows that at 4.35 p.m. on 20 October 2000 a request no. 704379702 pursuant to an order of White J. made on 20 October 2000 was lodged seeking the removal of caveat no. 704378901. That request was accompanied by a duplicate sealed order of this Court made by White J. on 20 October 2000. The Register shows also that at 4.36 p.m. on 20 October 2000 a request no. 704379703 that caveats nos. 704118262 and 704214272 be removed pursuant to an order of Williams, J. That request was accompanied by a duplicate sealed order of this Court made by Williams, J. on 18 October 2000. The Register shows that at 4:37 p.m. on 20 October 2000 transfer no. 704379708 in respect of lot 17 was lodged. The transferor was shown as the first defendant as mortgagee exercising power of sale under mortgage no. 701836320 and the transferees were shown as the fourth and fifth defendants. Document no. 704379709 was lodged at 4:38 p.m. on 20 October 2000. It was a mortgage granted by the fourth and fifth defendants over lot 17 to the Bank of Queensland Limited.

The plaintiffs' allegations in paragraphs 51 to 54 and 67 of the statement of claim are as follows:

“51.20/10/00 Elizabeth Von Risefer lodged a caveat in the Titles Office. However, the caveat was seemingly removed by Justice White's decision of 20/10/00 this is an impossibility as the Supreme Court closes at 4 PM, whilst she lodged the caveat at the Titles Office close to 5 PM which is closing time for the Titles Office.

It was a communication between Titles Office and McGillivrays solicitors of Permanent Trustee but time does not allow them to prepare an Application and Affidavit in a split second and to find in zero time available Chambers judge to hear them. Forgery and fraud was the solution. After a long search we found the original order of Justice White, was dated 24-10-00.

52.The answer can only be that the dates were forged to cover Permanent Trustee's transfer of property to the new owners. This could not have been done with our caveat of 20/10/00 in place, hence the date on the hearing in the Supreme Court was altered. We subsequently found further proof that the date had been changed to 20-10-00, for on top of the page of the transcripts is the indication 22102000 T3/JAP22 M/T 8289/200 (White J). This shows the hearing day as being the 22/10/00. Therefore the transfer of our property was illegally done via forgery 24/10/00. Fraudulently the Registry of the Supreme Court forged Decision of Justice Williams for our Caveats removal with fake hearing date 18/10/00 and Courts file Index 122 there are not transcripts, reasons and draft order made by the Judge, Justice Williams associate confirm that the Judge never heard the case.

53.Fraudulently the Registry of the Supreme Court forged the Courts file Index inserting no existing Affidavit and Application needed for the removal of our Caveats in the supposedly hearing of Justice Williams. The fraud and forgery appears with the Courts file Index which has Doc 122 of 18/10/00 Order Williams J, Doc. 123 of 20/10/00 Order White J. Doc. 126 of 18/10/00 Affidavit. Doc. 127 of 18/10/00 Application.

54.With the forged decision they went to the Justice White saying that Justice Williams heard the case and removed the Caveats and we apply to you for the same she follow the trend no to go Judge against Judge Anshun Estoppel she sign her order for Caveats removal on 24/10/00.

67.Title Office Duty of care was to have them Registered.

a)John Meyer and Maria Lampi never been appointed by Permanent Trustee

b)Don Power auctioneer.

c)Bank of Queensland was never been authorized or appointed on 18-10-00 and 20-10-00 by mortgagee

d)Gregory Dean Robson never been appointed on 20-10-00 to execute the transfers on behalf of Permanent Trustee.

e)Title office accepted Barry O Connell to transferee on 20-10-00 without appointment or power of Attorney or

f)Notice of Default defined on the schedule of the mortgage.

g)Clause 51 mortgagee sells the mortgaged land pursuant to alleged exercised power of sale the mortgagor shall be entitle only to receive an account from the mortgagee for sale of the purchase price as is received by the mortgagee in cash.

h)Clause 55.2 Notices send by mail: Notice of Default sent by mail and allows 48 hours to be received plus 30 Days the mortgagor to remedy the default: Property Law Act 1974 Sec. 84. They never issued according to the Act to comply with this.

i)Title Office has never requested the Default Notice and Exercised Power of Sale.

j)Clause 24 Mortgagee's Certificate of Default stating that Default never been obtained,

k)Clause 26.1 Power of mortgagee on Default. The mortgagee may exercise the power of sale and other power conferred this mortgage the Law Act 1974 subject to section 84 of property law ACT 1974.

l)Clause 55.1 A Notice request demand or other communication notice from mortgagee to the mortgagor shall be in writing and shall be deemed to be duly given.”

An examination of the documents relied on by the plaintiffs reveals that the allegations of forgery and fraud have no basis in fact. Those documents are to be found in the file of proceeding no. 4257 at 1998, and they were examined at the hearing on 7 March 2005. The transcript of White J's reasons reveals that her Honour indeed made an order on 20 October 2000, that the notation signed by her Honour and dated 24 October 2000 was made when her Honour revised her reasons in accordance with the usual practice in such matters, and that the date 22 October 2000 shown at the top of some pages of transcript was manifestly erroneous. The order made by Williams, J. on 18 October 2000 was recorded by his associate on the order sheet. The file reveals his Honour made the order after having given leave for the filing and reading of an application and an affidavit of Mr Gregory Robson, solicitor in the employ of the solicitors for the first defendant, sworn on 18 October 2000.

The second plaintiff advanced an elaborate argument concerning the transfer to the fourth and fifth defendants based first on the assertion that the persons who executed it on behalf of the first defendant as attorneys, Mr John Meyer and Ms Maria Lambi did not have authority to do so. The power of attorney in question, dated 2 June 1993 (no. L664541T) lodged on 30 September 1993 and registered in the Land Title Registry, shows that assertion to be groundless.

Mr Meyer and Ms Lambi, though not designated by name, were designated by position in the company. Furthermore, the Registrar was entitled to rely on the following provision in the grant of the power of attorney:

“No person dealing with the company or its attorneys or acting upon or on the faith of any deed document or instrument executed or purporting to be executed under this Power of Attorney shall be bound or concerned to enquire whether the attorneys who execute such deed document or instrument did in fact hold or occupy the appropriate position or office at the time of executing such deed document or instrument as the case may be.”

Secondly, the second plaintiff argued that the power of attorney was not in effect at the time of the transfer by reason of the retirement of those who attested its sealing. The power of attorney was executed under the common seal of the first defendant and remained effective as such notwithstanding the retirement of any director or other officer who attested the sealing.

Thirdly, it was asserted that there had been some deficiency in the payment of stamp duty on the transfer. The evidence relied on by the plaintiffs does not show that: the transfer bears a stamp showing that Queensland stamp duty had been paid. There was mention in the course of argument of the Duties Act 2001. That Act had not commenced at the relevant time, but in any event, if there was a deficiency in the payment of stamp duty that would not assist the plaintiffs in their case against the sixth defendant. It would be a matter for the revenue collector to take up with those responsible for the payment of duty.

Fourthly, the second plaintiff sought to argue that a declaration signed on 12 October 2000 by Mr Barry O'Connell, lending manager employed by the second defendant (the mortgage manager of the first defendant), had not been properly authorized by the first defendant. But the declaration was clearly lodged with the transfer executed by the first defendant.

The extent of the duty, if any, owed by the Registrar of Titles to the plaintiffs must be defined by the Land Title Act 1994. The Registrar did no more than give effect to orders of the Court made under s. 127 of that Act. In the result, I am satisfied that the plaintiffs have no prospect of succeeding on any part of their claim against the sixth defendant and there is no need for a trial of that claim. There is, on my assessment, no reason why the relief sought by the sixth defendant should be withheld in the exercise of the discretion to refuse that relief.

I should record that I invited the second plaintiff to make submissions on an application filed by the plaintiffs on 21 December 2004, but she declined to do so.

HIS HONOUR: I order that judgment be entered for the sixth defendant by dismissing the plaintiffs' claim against it.

I order that the plaintiffs pay to the sixth defendant its costs of the proceeding, including the costs of this application, to be assessed.

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Editorial Notes

  • Published Case Name:

    Eustace Von Risefer v Permanent Trustee Company Pty Ltd

  • Shortened Case Name:

    Von Risefer v Permanent Trustee Company Pty Ltd

  • MNC:

    [2005] QSC 63

  • Court:

    QSC

  • Judge(s):

    Helman J

  • Date:

    11 Mar 2005

Litigation History

No Litigation History

Appeal Status

No Status