Alanbert Pty Ltd v Bulevi Pty Ltd - [1999] NSWSC 237

CITATION: Alanbert Pty Ltd v Bulevi Pty Ltd [1999] NSWSC 237

CURRENT JURISDICTION: Equity

FILE NUMBER(S): 4528/97

HEARING DATE(S): 16 March 1999

JUDGMENT DATE:
16 March 1999

PARTIES :

Alanbert Pty Limited (P)
Bulevi Pty Limited (D1)
Davhand Pty Limited (D2)
Elliot & Tuthill (Mortgages) Pty Limited (D3)

JUDGMENT OF: Hamilton J

COUNSEL : Andrew Fairbairn (P)
R K Weaver (D1 & 2)
N F Francey (D3)

SOLICITORS: John Sarroff & Company (P)
Watson Mangioni (D1 & 2)
Baker Ryrie Rickards Titmarsh (D3)

CATCHWORDS: CONVEYANCING [216] - Torrens system - Mortgages charges and encumbrances - Powers and remedies of mortgagee - Notice of demand - Necessity for service of copy on caveator "who claims as an unregistered mortgagee or chargee" - To require service of copy of notice the unregistered mortgagee or chargee's claim must appear as such on face of caveat; PROCEDURE [583] - Costs - Departing from general rule - Conduct of parties - Vexatious process and issues - Conduct requiring application to be made to Court when outcome was inevitable - Order for indemnity costs.

ACTS CITED: Real Property Act 1900 s 57(2B)(1)(ii)

DECISION: Application refused for indemnity costs in respect of one motion but granted in respect of another.

SMT:AC:2

~16/03/99 5

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
HAMILTON J
TUESDAY, 16 MARCH 1999
4528/97 ALANBERT PTY LTD v BULEVI PTY LTD & ORS
JUDGMENT
HIS HONOUR:
1 I have heard argument concerning the costs of two motions in this matter, each being an application by the third defendant, Elliot & Tuthill (Mortgages) Pty Ltd, for an order that a caveat be withdrawn. The caveats were over two of the lots of a subdivision which are in contention in these proceedings between the plaintiff on the one hand and the first and second defendants on the other hand. The third defendant was initially joined as third defendant in the proceedings and there were, at that stage, claims by the plaintiff that it had an interest in the land taking priority over the interest of the third defendant as mortgagee thereof. However, those claims were eschewed and the third defendant was dismissed from the proceedings at an early stage. It was subsequently rejoined for the purpose of dealing with the caveats the subject of this costs application.

2 The caveat concerned in the first application for withdrawal was caveat no 2785228, which was over both lots 11 and 12 in the subdivision. The interest claimed in that caveat was in terms:

"as purchaser of the fee simple in possession pursuant to contract dated 2 March 1994 from Davhand Pty Ltd and Bulevi Pty Ltd."

On 22 October 1998 the third defendant gave the first and second defendants, as proprietors of the land, the notice pursuant to s 57(2B) of the Real Property Act 1900 (“the RPA”) necessary to be given before power of sale is exercised. It did not give notice, or a copy of the notice, to the plaintiff, Alanbert Pty Ltd,…

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.

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Details

Case: [1999] NSWSC 237
Decision Date: 16 March 1999

CaseChat Overview and Summary

Alanbert Pty Ltd brought a claim against Bulevi Pty Ltd in relation to a property dispute concerning the discharge of a mortgage. The matter was heard in the Supreme Court of New South Wales. The dispute centred around the process for discharging a mortgage under the Torrens system, particularly the necessity for service of a copy of a notice of demand on a caveator who claims as an unregistered mortgagee or chargee.

The court was required to determine the legal criteria for when a copy of the notice of demand must be served on an unregistered mortgagee or chargee. The primary issue was whether the unregistered mortgagee or chargee's claim needed to be explicitly stated on the face of the caveat for such service to be necessary. The court also considered the procedural implications, specifically whether the conduct of the parties warranted a departure from the general rule on costs and if an order for indemnity costs was appropriate.

The court found that for a copy of the notice of demand to be served on the caveator, the claim of the unregistered mortgagee or chargee must be clearly indicated on the face of the caveat. The court emphasised the importance of clarity in the presentation of claims to ensure proper legal processes are followed. Additionally, the court ruled that the conduct of the parties, particularly in raising issues that were essentially predetermined, warranted a departure from the usual cost allocation. The court ordered that indemnity costs be paid to the successful party due to the vexatious nature of the process and the unnecessary conduct of the parties.

The final orders included the determination that a copy of the notice of demand must be served when the unregistered mortgagee or chargee's claim is explicitly noted on the caveat. Furthermore, the court ordered Bulevi Pty Ltd to pay indemnity costs to Alanbert Pty Ltd due to the vexatious nature of the proceedings.

Orders