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  • Unreported Judgment

Mackay Reef Fish Supplies Pty Ltd v Vicary

 

[2013] QSC 118

 

SUPREME COURT OF QUEENSLAND

  

CITATION:

Mackay Reef Fish Supplies Pty Ltd v Vicary & Anor [2013] QSC 118

PARTIES:

MACKAY REEF FISH SUPPLIES PTY LTD
ACN 010 847 659
(plaintiff)
v
ADRIAN COLIN VICARY
(first defendant)
MICHELLE MAREE VICARY
(second defendant)

FILE NO/S:

6147 of 2012

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

8 May 2013

DELIVERED AT:

Brisbane 

HEARING DATE:

4 February 2013

JUDGE:

Atkinson J

ORDER:

1.The application for leave to amend the claim and statement of claim is dismissed.

  1. The parties are to show cause within seven days why the claim and statement of claim should not be struck out.
  1. If cause is not shown to the satisfaction of the court, the claim and statement of claim will be struck out without further reference to the parties.
  1. The parties are to show cause within 14 days why the Registrar of Titles should not remove caveat number 714435257 from the property, Lot 49 on Registered Plan 882394, County of Herbert, Parish of Conway, title reference 500042023.
  1. If cause is not shown to the satisfaction of the court, the judgment and orders will be referred to the Registrar of Titles without further reference to the parties.

CATCHWORDS:

REAL PROPERTY – TORRENS TITLE – BRINGING LAND UNDER THE ACT – CONFLICTING CLAIMS – LAPSE, REMOVAL AND WITHDRAWAL OF CAVEATS – LAPSE – WHEN CAVEAT LAPSES – where the plaintiff filed a claim for various declarations and orders with regard to a property – where the statement of claim attached to the claim pleaded that the defendants were the registered owners as joint tenants of the property – where the plaintiff pleaded that it lodged a caveat over the property claiming an interest as equitable mortgagee of the property pursuant to an agreement between the plaintiff and the defendants – where the plaintiff outside the three month period sought to amend its statement of claim to claim that it is an equitable mortgagee based on a different ground and that the caveat was lodged on a different ground –where the caveat may not have been lodged on the correct ground or if it was lodged on the correct ground then a proceeding to establish the interest claimed in the caveat was not commenced within three months – whether the caveat should lapse under s 105(3)(a) of the Land Title Act 1994 or otherwise be removed

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – AMENDMENT – whether the application for leave to amend the claim and statement of claim should be allowed

Land Title Act 1994 (Qld), s 121, s 122(2), s 126, s 126(4), s 105(3)(a)

Property Law Act 1974 (Qld), s 38, s 99, s 99(7)

Uniform Procedure Rules 1999 (Qld), r 16, r 171, r 377(1)(c), r 658

COUNSEL:

J P McEniery (sol) for the plaintiff

No appearance for the first defendant

No appearance for the second defendant

SOLICITORS:

Results Legal Solutions for the plaintiff

No appearance for the first defendant

No appearance for the second defendant

 

  1. On 12 July 2012 the plaintiff, Mackay Reef Fish Supplies Pty Ltd ("Mackay Reef Fish"), filed a claim in the Supreme Court against Adrian and Michelle Vicary. The claim was for various declarations and orders with regard to a property described as Lot 49 on Registered Plan 882394, County of Herbert, Parish of Conway, title reference 500042023 (thereinafter described as "the property"). The claim was as follows:

"1.A declaration that the plaintiff holds an interest as equitable mortgagee of property properly described as Lot 49 on Registered Plan 882394, County of Herbert, Parish of Conway, title reference 500042023 (Property).

  1. In the alternative to paragraph 1, a declaration that the plaintiff holds an interest as equitable chargee of the Property.
  1. A declaration that the equitable mortgage, or alternatively equitable charge, charges the Property with the payment of all monies due and owing by the defendants to the plaintiff.
  1. An order that the plaintiff's interest in the Property vest in possession.
  1. Pursuant to the Property Law Act 1974 (Act), orders in the following terms.

(a)The property be sold.

(b)That a trustee (Trustee) be appointed to be [sic] conduct the sale of the Property pursuant to section 38 of the Act, or alternatively section 99(7) of the Act, to               convey the Property upon the sale and that the Property vest in the Trustee for the purpose of the sale.

(c)The defendants deliver vacant possession of the Property to the Trustee within 30 days.

(d)The Trustee be entitled to incur and charge reasonable fees for his or her time and outlays in conducting the sale of the Property and that those fees and outlays be deemed part of the costs of sale of the Property.

(e)The Trustee be entitled to deduct the costs of sale of the Property from the proceeds of sale prior to distributing proceeds to the legal and equitable interest holders in the Property.

(f)The Trustee be entitled to pay to the plaintiff from the proceeds of sale of the Property, after the deduction of costs of sale and any amount due to the registered mortgagee, funds sufficient to discharge all amounts due to the plaintiff which are subject to the plaintiff's interest as equitable mortgagee or, alternatively, equitable chargee.

(g)The Trustee sell the land in any manner that he or she considers appropriate.

  1. In the alternative, pursuant to section 99 of the Act, an order in the following terms.

(a)The Property be sold.

(b)The defendants deliver up vacant possession of the Property to the plaintiff within 30 days.

(c)The sale of the Property be conducted by public auction.

(d)The plaintiff be authorised to engage a qualified real estate agent to advertise the Property and conduct the auction.

(e)The plaintiff be at liberty to sell the Property by private treaty prior to the auction.

(f)The proceeds of the sale of the Property be applied as follows.

(i)The payment of the costs of sale including any agent's commission, advertising expenses and reasonable legal fees.

(ii)The discharge of any prior registered mortgagee.

(iii)The payment of the amount due to the plaintiff in discharge of its interest in the Property.

(iv)The balance, if any, be paid to the defendants.

  1. Further and in the alternative, an order that accounts be taken of all monies due and owing to the plaintiff by the defendants.
  1. Costs on an indemnity basis.
  1. Such further or other order as this Honourable Court deems meet."
  1. The statement of claim attached to the claim pleaded that the defendants, Mr and Mrs Vicary, were the registered owners as joint tenants of the property. The plaintiff further alleged, in paragraph 2 of the statement of claim, that on or about 18 April 2011 it entered into an agreement with Mr and Mrs Vicary for the repayment of monies owing to the plaintiff for goods and services provided to a company, Vicsav Pty Ltd ("Vicsav") ("the agreement"). It was pleaded that the agreement provided that Mr and Mrs Vicary would pay instalments to the plaintiff and charged all their real and personal property (present and future) "with and to secure their obligations under the agreement."
  1. It was alleged that Mr and Mrs Vicary therefore charged their interest in the fee simple of the property as security for performance of their obligations under the agreement. It was then alleged that as at 26 April 2012 Mr and Mrs Vicary were indebted to the plaintiff for an amount of $24,492.57 which was due and payable pursuant to the agreement. The plaintiff pleaded that it lodged caveat number 714435257 over the property on 27 April 2012 claiming an interest as equitable mortgagee of the property pursuant to the agreement. The statement of claim further alleged by lodging the caveat and "pursuing legal action against the defendants", the plaintiff had incurred costs to be particularised which were payable by the defendants on an indemnity basis pursuant to the agreement. It then sought the nine orders which are set out in the claim.
  1. Affidavit material filed on behalf of the plaintiff by a commercial agent shows that the claim and statement of claim were served on the first defendant, Adrian Vicary, and the second defendant, Michelle Vicary, on 6 August 2012.
  1. The next step taken in the action occurred on 19 December 2012 when the plaintiff filed an application in the following terms:

"1.That pursuant to rule 377(1)(c) of the Uniform Civil Procedure Rules 1999, the claim and statement of claim filed 12 July 2012 in these proceedings be amended as per the document marked 'A' attached to this application;

  1. That pursuant to rule 658 of the Uniform Civil Procedure Rules 1999, service of the amended claim and amended statement of claim (Documents) be deemed effective by the solicitors for the plaintiff serving the Documents on the defendants' solicitors, Macrossan & Amiet;
  1. That the defendants pay the plaintiff's costs of and incidental to this application; and
  1. Such further or other orders as this Honourable Court may deem appropriate."
  1. The proposed amendments to the claim were to add as paragraphs 1A and 1B:

"1A.$24,492.57 being monies owing by the defendants pursuant to the Guarantee.

1B.Interest on $24,492.57 from 11 April 2012 at the rate of 10% per annum pursuant to section 58 of the Civil Proceedings Act 2011."

  1. The proposed amendments to the statement of claim were to delete the allegation that the plaintiff entered into an agreement with the defendants, Mr and Mrs Vicary, but rather to plead that the agreement was between the plaintiff and Vicsav (the "Vicsav agreement") and that the defendants entered into a written guarantee in which they guaranteed to the plaintiff Vicsav's obligations under the Vicsav agreement ("the guarantee"). The guarantee, it was alleged, was evidenced by terms of settlement signed on or about 18 April 2011. The plaintiff also proposed to amend the statement of claim to allege that the plaintiff had lodged caveat number 714435257 over the property claiming an interest as equitable mortgagee of the property pursuant to the "guarantee" rather than the "agreement" as originally pleaded.
  1. The plaintiff also sought an order that it not be required to serve the defendants personally, notwithstanding that there were no solicitors on the record for the defendants. It appears that the application was served on solicitors acting for the defendants rather than the defendants personally notwithstanding that there were no solicitors on the record for the defendants.
  1. The plaintiff also sought an order that the defendants pay the plaintiff's costs of and incidental to the application to amend the claim and statement of claim. This was so notwithstanding that the proposed amendments appear to have arisen out of errors made by the plaintiff in its original claim and statement of claim which could not be attributed in any way to the defendants.
  1. The affidavit filed in support of the application exhibited an email from the plaintiff's solicitor attaching various documents including one that purported to be "Terms of Agreement dated 18 April 2011". That document was what appears to be a faxed copy of a "without prejudice" letter from the plaintiff's solicitors to Vicsav trading as "Sushi Hi" (therein described as "the debtor") and the defendants (therein described as "the guarantors") dated 25 March 2011 which was an offer said to remain open for acceptance until 31 March 2011. Time was said to be of the essence. The signatures which appear to be of the defendants accepting the offer in the following terms "on behalf of Vicsav Pty Ltd trading as Sushi Hi of Unit 3/390 Shute Harbour Road, Shute Harbour, Queensland, accept the offer of settlement contained in the above letter, both in my own right and on behalf of the debtor" were dated 2 April 2011. It might be deduced from the exhibited document that it was sent by facsimile transmission on 18 April 2011 but no explanation is provided as to how that could constitute "Terms of settlement signed on or about 18 April 2011" or how the offer which had lapsed could be accepted.
  1. When the matter came on for hearing before me in the applications jurisdiction, I queried whether or not the matter should be transferred to a lower court given the quantification of the original debt at less than $25,000. I adjourned the application to allow the plaintiff to make submissions addressed to that point.
  1. The plaintiff made submissions that the proceeding should not be transferred to the District Court as that court did not have jurisdiction "to sell the defendants’ property" as:
  • the District Court's only source of power to order the sale of real property (as opposed to taking possession) is pursuant to s 38 of the Property Law Act 1974;
  • the District Court does not have the general law power to order the sale; and
  • s 38 of the Property Law Act 1974 does not apply to these proceedings as both co-owners have granted an encumbrance to the plaintiff (ie both defendants signed Terms of Settlement granting to the plaintiff an equitable mortgage and/or equitable charge in respect of their interest in the property).
  1. The submissions made by the plaintiff were predicated on the basis that s 38 of the Property Law Act did not apply to this proceeding notwithstanding paragraph 5 of the claim and proposed amended claim and of the prayer for relief in the statement of claim and proposed amended statement of claim which sought orders pursuant to s 38 of the Property Law Act.
  1. The submissions purported to attach a copy of the caveat. What was attached was a registration confirmation statement which showed that a caveat was registered on 27 April 2012. The caveat which is required to be lodged must, under s 121 of the Land Title Act, state, inter alia, both the interest claimed by the caveator and the grounds of which the interest is claimed.  A caveat may only be lodged by an equitable mortgagee under s 122(2) if it is a caveat to which s 126 applies.  Section 126(4) provides that if a caveator does not want a caveat to which the section applies to lapse, the caveator must:

"(a)start a proceeding in a court of competent jurisdiction to establish the interest claimed under the caveat —

(i)if a notice under subsection (2) is served on the caveator — within 14 days after the notice is served on the caveator; or

(ii)if a notice under subsection (2) is not served on the caveator — within 3 months after the lodgement of the caveat; and

(b)notify the registrar within the 14 days or the 3 months that a proceeding has been started and identify the proceeding."

  1. If the caveator does not comply with s 126(4) then the caveat lapses.
  1. The plaintiff did start its action within three months of the lodgement of the caveat to establish an interest. The interest was alleged in the statement of claim to be an interest as equitable mortgagee of the property said to have arisen as a result of the agreement pleaded in that statement of claim. The caveat was alleged in the statement of claim to have been lodged claiming an interest as an equitable mortgagee under that agreement.
  1. However, well outside the three month period the plaintiff has sought to amend its statement of claim to claim that it is an equitable mortgagee based on a different ground and that the caveat was lodged on a different ground. This suggests that the caveat may not have been lodged on the correct ground or if it was lodged on the correct ground then a proceeding to establish the interest claimed in the caveat was not commenced within three months. In either circumstance the caveat should be removed or would lapse. Given that I became aware of this problem only when I examined the affidavit material filed in support of the application, and that, contrary to what is stated in the submissions a copy of the caveat was not in fact attached, I shall give the parties the opportunity to make further submissions as why the caveat should not be removed from the title to the property. Unless cause is shown within 14 days of the date of publication of this judgment, I shall direct the Registrar of Titles to consider whether or not the caveat should lapse under s 105(3)(a) of the Land Title Act 1994 or otherwise be removed.
  1. In these unsatisfactory circumstances I would refuse the application for leave to amend the claim and statement of claim. It would be an abuse of process of the court to allow an amendment which is apparently incorrect. The plaintiff's claim as presently pleaded is contradicted by the evidence which it has presented to the court and therefore it appears should be struck out in the inherent jurisdiction of the court and pursuant to r 16 and r 171 of the UCPR. As this problem only became apparent during my consideration of the material filed, I will give the parties seven days from the date of publication of this judgment to make submissions as to why the proceeding should not be struck out. If good cause is not shown, I shall order the claim and statement of claim be struck out without further reference to the parties.
  1. It is not necessary at this stage to consider therefore whether or not to transfer the proceedings to a lower court.

Orders

  1. The application for leave to amend the claim and statement of claim is dismissed.
  1. The parties are to show cause within seven days why the claim and statement of claim should not be struck out.
  1. If cause is not shown to the satisfaction of the court, the claim and statement of claim will be struck out without further reference to the parties.
  1. The parties are to show cause within 14 days why the Registrar of Titles should not remove caveat number 714435257 from the property, Lot 49 on Registered Plan 882394, County of Herbert, Parish of Conway, title reference 500042023.
  1. If cause is not shown to the satisfaction of the court, the judgment and orders will be referred to the Registrar of Titles without further reference to the parties.
Close

Editorial Notes

  • Published Case Name:

    Mackay Reef Fish Supplies Pty Ltd v Vicary & Anor

  • Shortened Case Name:

    Mackay Reef Fish Supplies Pty Ltd v Vicary

  • MNC:

    [2013] QSC 118

  • Court:

    QSC

  • Judge(s):

    Atkinson J

  • Date:

    08 May 2013

Litigation History

No Litigation History

Appeal Status

No Status