A & T Promotions Pty Ltd v Ikin & AG (CQ) Pty Ltd - [2009] QSC 119

SUPREME COURT OF QUEENSLAND

CITATION:

A & T Promotions Pty Ltd v Ikin & AG (CQ) Pty Ltd [2009] QSC 119

PARTIES:

A & T PROMOTIONS PTY LTD ACN 103 910 854 as trustee for TOOWOOMBA UNIT TRUST
(applicant)
v
IKIN as trustee for THE MACKAY TRUST
(first respondent)
AG (CQ) PTY LTD ACN 121 034 893 as trustee for the AG (CQ) FAMILY TRUST

(second respondent)

FILE NO/S:

9586/08

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court of Brisbane

DELIVERED ON:

18 May 2009

DELIVERED AT:

Brisbane

HEARING DATE:

23 March 2009

JUDGE:

Wilson J

ORDER:

It is declared that -

1. the Plaintiff has an interest as equitable mortgagee in Lot 1 on SP 209449, in the County of Carisle, Parish of Howard, being all of the land contained in title reference 50753455 (""); the Land

the Second Defendant has an interest as equitable mortgagee in the Land; 2.

3. the Plaintiff’s interest in the Land as equitable mortgagee takes priority over the Second Defendant’s interest in the Land.

And it is ordered that -

4. the First Defendant, whether by its himself, his employees or his agents or otherwise howsoever, be restrained from dealing with the Land in a manner which is contrary to the Plaintiff’s and/or the Second Defendant’s interest set out in Orders 1 to 3 above;

5. the Second Defendant, whether by its officers, employees or agents or otherwise howsoever, be restrained from dealing with the Land in a manner which is contrary to the Plaintiff’s interests in Orders 1 and 3 above;

6. Caveat Number 711881562 be forthwith removed from the Land;

7. the Second Defendant pay the Plaintiff’s costs of and incidental to these proceedings, including reserved costs, to be agreed or assessed on the standard basis.

It is directed that –

8. the Second Defendant, whether by itself, its employees or agents, or otherwise howsoever, do all things reasonable and necessary to deliver to the Plaintiff the signed Transfer dated 17 March 2008 from the Second Defendant to the First Defendant in respect of the Land in an unencumbered form, within a reasonable time from the date of this Order.

CATCHWORDS:

MORTGAGES – MORTGAGES AND CHARGES GENERALLY – PRIORITY OF ESTATES, DEBTS AND ENCUMBRANCES – BETWEEN EQUITABLE INTERESTS – where first defendant is the registered owner of land – where plaintiff and second defendant both have equitable mortgages over the land – where plaintiff’s equitable mortgage is first in time – whether plaintiff should be accorded priority as the first in time

Land Sales Act 1984 (Qld)
Land Title Act 1994 (Qld), s 122(3)

Property Law Act 1974 (Qld), s 199

Australian Guarantee Corporation (NZ) Ltd v CFC [1995] 1 NZLR 129, cited
Commercial Finance Ltd Cash Resources Australia Pty Ltd v BT Securities Ltd [1990] VR 576, cited
Dixon v Muckleston (1872) L.R. 8 Ch App 155, cited
Heid v Reliance Finance Corporation Pty Ltd (1983) 154 CLR 326, considered
Latec Investments Limited v Hotel…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading A & T Promotions Pty Ltd v Ikin & AG (CQ) Pty Ltd

Details

AGLC: A & T Promotions Pty Ltd v Ikin & AG (CQ) Pty Ltd [2009] QSC 119
Case: [2009] QSC 119
Decision Date: 18 May 2009

CaseChat Overview and Summary

A & T Promotions Pty Ltd brought an action against Ikin and AG (CQ) Pty Ltd in the Supreme Court of Queensland, seeking recognition and priority of their equitable mortgage over certain land. The dispute arose because the land was registered in the name of the first defendant, Ikin, but both A & T Promotions and the second defendant, AG (CQ) Pty Ltd, claimed equitable mortgages over the property. A & T Promotions argued that their equitable mortgage, established earlier in time, should take precedence over the later claim by AG (CQ) Pty Ltd.

The court was required to determine whether the earlier equitable mortgage of A & T Promotions should be given priority over the subsequent claim of AG (CQ) Pty Ltd. This involved examining the principles governing the priority of equitable interests in land, particularly when two parties claim equitable mortgages over the same property. The court had to consider the relative timing of the creation of the equitable mortgages and any other relevant factors that might influence the priority between the competing claims.

The court found in favour of A & T Promotions, declaring that they held an equitable mortgage interest in the land, which took precedence over the interest claimed by AG (CQ) Pty Ltd. The court reasoned that the principle of 'first in time, first in right' applied to equitable mortgages, and since A & T Promotions' equitable mortgage was established first, it was entitled to priority. The court further restrained the first defendant from dealing with the land in a way that contravened the equitable interests of A & T Promotions and AG (CQ) Pty Ltd. It also ordered AG (CQ) Pty Ltd to remove a caveat from the land and deliver a signed transfer document to A & T Promotions. Additionally, AG (CQ) Pty Ltd was directed to pay A & T Promotions' costs of the proceedings.

The final orders declared A & T Promotions' priority over the land, restrained the defendants from dealing with the property in a manner inconsistent with the equitable interests, removed a caveat, and ordered AG (CQ) Pty Ltd to deliver a signed transfer and pay costs.

Orders

Orders of the court

It is declared that -

1. the Plaintiff has an interest as equitable mortgagee in Lot 1 on SP 209449, in the County of Carisle, Parish of Howard, being all of the land contained in title reference 50753455 (""); the Land

the Second Defendant has an interest as equitable mortgagee in the Land; 2.

3. the Plaintiff’s interest in the Land as equitable mortgagee takes priority over the Second Defendant’s interest in the Land.

And it is ordered that -

4. the First Defendant, whether by its himself, his employees or his agents or otherwise howsoever, be restrained from dealing with the Land in a manner which is contrary to the Plaintiff’s and/or the Second Defendant’s interest set out in Orders 1 to 3 above;

5. the Second Defendant, whether by its officers, employees or agents or otherwise howsoever, be restrained from dealing with the Land in a manner which is contrary to the Plaintiff’s interests in Orders 1 and 3 above;

6. Caveat Number 711881562 be forthwith removed from the Land;

7. the Second Defendant pay the Plaintiff’s costs of and incidental to these proceedings, including reserved costs, to be agreed or assessed on the standard basis.

It is directed that –

8. the Second Defendant, whether by itself, its employees or agents, or otherwise howsoever, do all things reasonable and necessary to deliver to the Plaintiff the signed Transfer dated 17 March 2008 from the Second Defendant to the First Defendant in respect of the Land in an unencumbered form, within a reasonable time from the date of this Order.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	A & T Promotions Pty Ltd v Ikin & AG (CQ) Pty Ltd [2009] QSC 119
PARTIES:	A & T PROMOTIONS PTY LTD ACN 103 910 854 as trustee for TOOWOOMBA UNIT TRUST (applicant) v IKIN as trustee for THE MACKAY TRUST (first respondent) AG (CQ) PTY LTD ACN 121 034 893 as trustee for the AG (CQ) FAMILY TRUST (second respondent)
FILE NO/S:	9586/08
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court of Brisbane
DELIVERED ON:	18 May 2009
DELIVERED AT:	Brisbane
HEARING DATE:	23 March 2009
JUDGE:	Wilson J
ORDER:	It is declared that - 1. the Plaintiff has an interest as equitable mortgagee in Lot 1 on SP 209449, in the County of Carisle, Parish of Howard, being all of the land contained in title reference 50753455 (""); the Land the Second Defendant has an interest as equitable mortgagee in the Land; 2. 3. the Plaintiff’s interest in the Land as equitable mortgagee takes priority over the Second Defendant’s interest in the Land. And it is ordered that - 4. the First Defendant, whether by its himself, his employees or his agents or otherwise howsoever, be restrained from dealing with the Land in a manner which is contrary to the Plaintiff’s and/or the Second Defendant’s interest set out in Orders 1 to 3 above; 5. the Second Defendant, whether by its officers, employees or agents or otherwise howsoever, be restrained from dealing with the Land in a manner which is contrary to the Plaintiff’s interests in Orders 1 and 3 above; 6. Caveat Number 711881562 be forthwith removed from the Land; 7. the Second Defendant pay the Plaintiff’s costs of and incidental to these proceedings, including reserved costs, to be agreed or assessed on the standard basis. It is directed that – 8. the Second Defendant, whether by itself, its employees or agents, or otherwise howsoever, do all things reasonable and necessary to deliver to the Plaintiff the signed Transfer dated 17 March 2008 from the Second Defendant to the First Defendant in respect of the Land in an unencumbered form, within a reasonable time from the date of this Order.
CATCHWORDS:	MORTGAGES – MORTGAGES AND CHARGES GENERALLY – PRIORITY OF ESTATES, DEBTS AND ENCUMBRANCES – BETWEEN EQUITABLE INTERESTS – where first defendant is the registered owner of land – where plaintiff and second defendant both have equitable mortgages over the land – where plaintiff’s equitable mortgage is first in time – whether plaintiff should be accorded priority as the first in time Land Sales Act 1984 (Qld) Land Title Act 1994 (Qld), s 122(3) Property Law Act 1974 (Qld), s 199 Australian Guarantee Corporation (NZ) Ltd v CFC [1995] 1 NZLR 129, cited Commercial Finance Ltd Cash Resources Australia Pty Ltd v BT Securities Ltd [1990] VR 576, cited Dixon v Muckleston (1872) L.R. 8 Ch App 155, cited Heid v Reliance Finance Corporation Pty Ltd (1983) 154 CLR 326, considered Latec Investments Limited v Hotel…