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  • Unreported Judgment

Mackay Reef Fish Supplies Pty Ltd v Vicary (No 2)

 

[2013] QSC 221

 

SUPREME COURT OF QUEENSLAND

  

CITATION:

Mackay Reef Fish Supplies Pty Ltd v Vicary & Anor [No 2] [2013] QSC 221

PARTIES:

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

and
MICHELLE MAREE VICARY
(second defendant)

FILE NO:

6147 of 2012

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

29 August 2013

DELIVERED AT:

Brisbane 

HEARING DATES:

15 May 2013, 13 June 2013, 25 June 2013

JUDGE:

Atkinson J

ORDERS:

  1. The claim and statement of claim filed on 12 July 2012 be struck out. 
  2. The plaintiff may not charge the defendants any costs for these proceedings under the contract or at all.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PLEADING – STATEMENT OF CLAIM – where an application for leave to amend the claim and statement of claim was dismissed – where the claim and statement of claim contain allegations that plaintiff is incapable of proving by any admissible evidence – whether plaintiff has shown cause why the claim and statement of claim should not be struck out

REAL PROPERTY – TORRENS TITLE – BRINGING LAND UNDER THE ACT – CONFLICTING CLAIMS – LAPSE, REMOVAL AND WITHDRAWAL OF CAVEATS – REMOVAL AND WITHDRAWAL – where a caveat was lodged by a person claiming as equitable mortgagee and is subject to s 126 of the Land Title Act 1994 (Qld) – where the caveator lodged a proceeding in this court within three months to establish that interest – where the caveat has not lapsed – where the claim has been struck out – whether the Registrar of Titles should cancel the caveat

Land Title Act 1994 (Qld) s 126, s 127, s 128

Allen’s Asphalt Pty Ltd v SPM Group Pty Ltd [2010] 1 Qd R 202 at 208; [2009] QCA 134, distinguished

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

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 8 May 2013 I made orders on an interlocutory application in this proceeding as follows:
  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. [sic]
  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.

Reasons for those orders were given[1] and are relevant to this decision but need not be repeated.

  1. Submissions were received from the applicant on 15 May 2013 however those submissions were not served on the defendants who have no solicitors on the record in this proceeding. The plaintiff was informed by my associate that the submissions and the attached affidavit of Jackie Bree McNeil would have to be served on the defendants in these circumstances. On 25 June 2013 my associate was informed that the documents had been served personally on the defendants and that service had taken place on 13 June 2013.
  1. What follows is my decision as to whether or not the plaintiff has shown cause why the claim and statement of claim should not be struck out and whether or not the plaintiff has shown cause why the Registrar of Titles should not remove caveat no. 714435257 from the property, Lot 49 on registered plan 882394, County of Herbert Parish of Conway, title reference 50042023.
  1. The plaintiff sought to rely in addition to its further submissions on an affidavit affirmed by Jackie Bree McNeil, a senior paralegal in the employ of its solicitors Results Legal. That affidavit deals with two topics. It deals with the way in which the agreement said to support the caveat was made and also exhibits the caveat which was not exhibited in the material originally filed on the application to amend the claim and statement of claim. The submissions made by the plaintiff's solicitor also adumbrate reasons why the amendments sought in the application for leave to amend the claim and statement of claim should be allowed. That application was dismissed on 8 May 2013 and a new application would have to have been filed for leave to amend for it to be considered again. This decision is concerned only with whether or not the plaintiff has shown cause why the claim and statement of claim should not be struck out and why the Registrar of Titles should not remove the caveat.
  1. The further affidavit material filed by the plaintiff does answer the question left open on the material previously filed as to why an offer which was said to remain open for acceptance until 31 March 2011 and where time was said to be of the essence was able to be accepted after that date. However the claim and statement of claim contain allegations which the plaintiff is unable to support. The claim made in the statement of claim is based on an agreement said to be constituted by terms of settlement "signed on or about 18 April 2011". Evidence of the entering into an agreement between the relevant parties has been provided but all of that evidence contradicts any suggestion that it was signed on 18 April 2011. The plaintiff has had more than adequate opportunity to show that it has some basis for a claim based on terms of settlement "signed on or about 18 April 2011". In spite of that, it has been unable to do so. Accordingly it appears it cannot succeed on the claim and statement of claim as filed or indeed even on the amendments which have already been refused. The facts alleged in the statement of claim with regard to the making of the alleged agreement are contradicted by the evidence put forward by the plaintiff.
  1. It would be an abuse of the process of the court to allow a claim and statement of claim as pleaded (or even with the proposed amendments) to remain on foot which it appears that the plaintiff would be incapable of proving by any admissible evidence. Accordingly I am satisfied that the plaintiff has been unable to show cause why the claim and statement of claim should not be struck out and they should be struck out on that ground.
  1. I turn to consider the caveat. The interest being claimed under the caveat is said to be "an equitable interest as mortgagee of the share of the estate in fee simple of the land described in item 2 of this caveat." The land described in item 2 of the caveat is "Lot 49 on RP 882394 in the County of Herbert, Parish of Conway, being title reference no. 50042023."  The caveat was given number 714435257.  The grounds of the claim are said in item 4 to be:

"Adrian Colin Vicary and Michelle Maree Vicary charged all their estate and interest in the land described in item 2 of this caveat pursuant to clause 10 of the agreement made on 2 April 2011 between Mackay Reef Fish Supplies Pty Ltd ACN 010 847 659 and Vicsav Pty Ltd ACN 108 829 460 trading as Sushi Hi and Adrian Colin Vicary and Michelle Maree Vicary as guarantors for to [sic] indebtedness under the agreement between Vicsav Pty Ltd ACN 108 929 460 trading as Sushi Hi and Mackay Reef Fish Supplies Pty Ltd ACN 010 847 659 dated 2 April 2011."

  1. The agreement therein referred to, said to have been made on 2 April 2011, appears to be the same agreement referred to in the claim and statement of claim as having been signed on or about 18 April 2011. There is evidence which suggests that an agreement in which such a charge was created may have been made on 2 April 2011 or at least signed on that day by Mr and Mrs Vicary and that therefore it is possible that a properly pleaded claim brought in the correct jurisdiction to establish the caveator's interest might be successful.
  1. The caveat, which has been registered, is over land with a particular title reference number (title reference no. 50042023). The claim and statement of claim refer to land with a different title reference number (title reference no. 500042023). It would appear therefore that the title reference of the land the subject of the plaintiff's claim is incorrect. This could have been the subject of an application for leave to amend but it has not been in spite of the plaintiff being given a further opportunity to file material and make submissions. It is yet another reason why the plaintiff's claim as pleaded should be struck out. The question remains as to what should happen to the caveat once these proceedings have been struck out.
  1. The caveat was lodged by a person claiming as equitable mortgagee and consequently is subject to s 126 of the Land Title Act 1994 (Qld).  Subsection 126(4)(a)(ii) provides that a caveator who does not want such a caveat to lapse must start a proceeding in a court of competent jurisdiction within three months of lodging the caveat to establish the interest claimed under the caveat.  A proceeding was started in this court within three months to establish that interest so the caveat has not lapsed.[2]  However, that claim has been struck out.  The caveat could now be cancelled by the Registrar of Titles under s 128 of the Land Title Act or removed by the court under s 127 of the Land Title Act on an application by the caveatee.  As the caveatee has made no application, the court's jurisdiction to order the caveat's removal has not yet arisen.  The court could not in those circumstances order its removal.
  1. Whether or not in these circumstances the caveat should be cancelled by the Registrar of Titles under s 128 of the Land Title Act, is a matter for the Registrar.

Conclusion

  1. The plaintiff has failed to show cause why the claim and statement of claim should not be struck out so I will order that the claim and statement of claim filed on 12 July 2012 be struck out. In the circumstances where the errors made in this litigation are not attributable in any way to the defendants, the plaintiff may not charge the defendants any costs for these proceedings under the contract or at all.

Footnotes

[1] [2013] QSC 118.

[2] cf Allen's Asphalt Pty Ltd v SPM Group Pty Ltd [2010] 1 Qd R 202 at 208.

Close

Editorial Notes

  • Published Case Name:

    Mackay Reef Fish Supplies Pty Ltd v Vicary & Anor (No 2)

  • Shortened Case Name:

    Mackay Reef Fish Supplies Pty Ltd v Vicary (No 2)

  • MNC:

    [2013] QSC 221

  • Court:

    QSC

  • Judge(s):

    Atkinson J

  • Date:

    29 Aug 2013

Litigation History

No Litigation History

Appeal Status

No Status