Andara Homes Pty Limited v Hong Thuy Tai (No 2)

[2014] ACTSC 164

ANDARA HOMES PTY LIMITED v HONG THUY TAI (NO 2)
[2014] ACTSC 164 (6 June 2014)

REAL PROPERTY – Caveats – Removal of caveat

Land Titles Act 1925 (ACT), s 106

Andara Homes v Tai [2014] ACTSC 37
Covell Matthews and Partners v French Wools Ltd [1977] 2 All ER 591
Musman v Boret (1892) WR 352

EX TEMPORE JUDGMENT

No. SC 42 of 2014

Judge:              Refshauge J
Supreme Court of the ACT

Date:               6 June 2014

IN THE SUPREME COURT OF THE       )
  )          No. SC 42 of 2014
AUSTRALIAN CAPITAL TERRITORY    )          

BETWEEN:ANDARA HOMES PTY LIMITED

Plaintiff

AND:HONG THUY TAI

Defendant

ORDER

Judge:  Refshauge J
Date:  6 June 2014
Place:  Canberra

THE COURT DECLARES THAT:

1. The proceedings in the Magistrates Court between the plaintiff and the defendant, number CS267 of 2014, have concluded and that, in accordance with Order 2 made on 3 February 2014, the extension of caveat number 1891681 and referred to in lapsing notice of 23 January 2014 as caveat number 1898286 has expired.

THE COURT ORDERS THAT:

1. The copies of the Deed between the plaintiff and the defendant made in May 2014 and tendered as Exhibit 1 in these proceedings be placed in a sealed envelope, which may not be opened, save by the order of a Judge of this Court.

1. The defendant be given leave to file in Court a notice of discontinuance signed by both parties.

1. On 3 February 2014, I extended a caveat under s 106 of the Land Titles Act 1925 (ACT), which had been lodged by the plaintiff in respect of land in the Australian Capital Territory, of which the defendant was the registered proprietor. The Registrar-General had sent a notice under that section to the plaintiff, which would have had the effect that the caveat would have lapsed unless extended by the court. See Andara Homes v Tai [2014] ACTSC 37.

1. The caveat was extended for a limited period to permit the plaintiff to commence proceedings to assert the claim made in the caveat.  Order 2 of the orders made on 3 February 2014 then extended the caveat until the conclusion of those proceedings.  As I then said, the caveator is usually required to commence appropriate proceedings for the relief to which the asserted interest stated in the caveat entitles the caveator to claim:  Andara Homes v Tai at [9].

1. Those proceedings were commenced in the Magistrates Court between the plaintiff and the defendant, number CS267 of 2014.  The order I made extended the caveat until the conclusion of those proceedings.  I am delighted to have been informed that the disputes between the parties have resolved.  I congratulate the parties and their legal advisers.

1. A Deed of Settlement and Release has been signed, and copies of the signed deed were tendered, as was proper, so that I could be assured of the settlement of the various proceedings.  I note that clause 5.1 requires the parties to keep the contents of the deed confidential, and I will make an appropriate order to protect the confidentiality of the Deed.

1. Consequent upon the making of the Deed, a notice of discontinuance of the Magistrates Court proceedings was filed in that Court, and I have been provided with a sealed copy of the filed notice.  Thus, those proceedings have been brought to an end.  It has been suggested, however, that Order 2 of the orders made on 3 February 2014, may, nevertheless, inhibit the withdrawal or lapsing of the caveat.

1. As I have said, I have received a sealed copy of the notice of discontinuance, and am satisfied that it has concluded the Magistrates Court proceeding.  See Covell Matthews and Partners v French Wools Ltd [1977] 2 All ER 591 at 802, 805. A discontinuance may not be lifted as, for example, may a stay. See Musman v Boret (1892) WR 352.  Thus, for the purposes of the Magistrates Court proceedings the filing of the notice of discontinuance is the conclusion of the proceedings.

1. For more abundant caution, however, I am prepared to make a declaration to this effect to facilitate the agreement between the parties as set out in the Deed and permit the filing of a notice of withdrawal of the caveat or, alternatively, the lapsing of the caveat, the extension having now expired. 

1. I note that a notice of discontinuance is to be filed in these proceedings.  Clearly, I need to first make any orders necessary to resolve the matters that need to be done before the proceedings are brought to a conclusion, and I will do so.

1. Accordingly:

(1)       I order that copies of the deed between the plaintiff and the defendant made in May 2014 and tendered as Exhibit 1 in these proceedings be placed in a sealed envelope, which may not be opened, save by the order of a Judge of this Court.

(2)       I declare that the proceedings in the Magistrates Court between the plaintiff and the defendant, number CS267 of 2014, have concluded and that, in accordance with Order 2 made on 3 February 2014, the extension of caveat number 1891681 and referred to in lapsing notice of 23 January 2014 as caveat number 1898286 has expired.

(3)       I give leave to the defendant to file in Court a notice of discontinuance signed by both parties.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Associate:

Date: 29 July 2014

Counsel for the Applicant:  Not present
Solicitor for the Applicant:  Not present
Counsel for the Respondent:  Mr H Kay
Solicitor for the Respondent:  Goodman Law
Date of hearing:  6 June 2014
Date of judgment:  6 June 2014