Aperfield P/L v Tosswill

[2001] QCA 132

SUPREME COURT OF QUEENSLAND

CITATION:

Aperfield P/L v Tosswill [2001] QCA 132

PARTIES:

APERFIELD PTY LTD ACN  006 082 426
(respondent/applicant)
v
ANTHONY CHARLES TOSSWILL
(appellant/respondent)

FILE NO/S:

CA No 1183 of 2001

SC No 2271 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

Application for leave to appeal and application to strike out

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

10 April 2001

DELIVERED AT:

Brisbane

HEARING DATE:

6 April 2001

JUDGES:

Thomas JA, Chesterman and Holmes JJ
Judgment of the Court

ORDER:

Application for leave to appeal dismissed with costs.  Application to strike out dismissed.

CATCHWORDS:

CONVEYANCING – CAVEATS AGAINST DEALINGS – WITHDRAWEL – APPEAL – TIME FOR APPEAL – EXTENSION OF TIME – where parties entered into joint venture agreement – where applicant lodged caveat against land – where applicant no interest under agreement to land – where applicant instructed solicitors to withdraw caveat – where removal of caveat ordered by lower court – where appeal from that decision 10 months out of time

TAXES AND DUTIES – STAMP DUTIES – UNSTAMPED AND IMPROPERLY STAMPED DOCUMENTS – EXEMPTIONS – where applicant’s main ground of appeal was that evidence before court contained unstamped joint venture agreement – document not chargeable with stamp duty – s 4A of Stamp Act not applicable

SOLICITOR AND CLIENT – AUTHORITY - where applicant argued his solicitors acted contrary to instructions – where solicitors had ostensible authority

Stamp Act 1894 (Qld), s4A

COUNSEL:

The applicant appeared on his own behalf
R I M Lilley for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Deacons Graham & James for the respondent

1. THE COURT: The application before the court is a misconceived one for leave to appeal under the District Court Act.  The appeal which the applicant desires to bring is one against an order made in the Supreme Court by Williams J on 22 March 2000.  His Honour ordered the removal of a caveat lodged by the applicant and ordered him to pay the costs of the application.  The applicant does not need leave to bring such an appeal, but of course must bring it within the prescribed time.

1. The present application was filed on 6 February 2001, more than 10 months after the order was made.  It is well out of time. The applicant needs an extension of time for the bringing of an appeal and we shall treat this application as one for extension of time.  There is also a cross-application by the respondent to strike out the application as an abuse of process.  This seems based on submissions that the present application is without merit, and that it has simply been motivated by the applicant's desire to set aside a bankruptcy notice based on the costs order.

1. The caveat was on its face of questionable validity.  The claim was of "an interest in the property pursuant to a joint venture agreement between the caveator and the registered proprietor".  The only ground given in support was "the caveator claims an estate or interest in the real property pursuant to monetary contributions made by the caveator in relation to the cost of developing the said property into a proposed residential subdivision".   On the face of it, this fails to state any recognised form of interest in the land.  On this basis alone the dismissal of the caveat by Williams J may have been appropriate, and if so, an appeal against it would be without reasonable prospects of success.  However, we shall briefly mention other grounds that were raised by the applicant.

1. On the material before Williams J the applicant and the respondent, along with three other parties, entered into a written joint venture agreement on 7 January 1998.  It was intended to develop land and there was provision for the payout of certain mortgages and the borrowing of other monies.  The agreement did not give the applicant rights to share in the profits or any interest in the land the subject of the joint venture.  However the applicant proceeded to lodge a series of caveats including the caveat of 13 January 2000 which is the subject of the respondent's application for removal. 

1. There was then correspondence between the respondent's solicitor (Mr Litster) and the applicant's solicitors (Messrs Whitehead Payne, Lawyers) in relation to the application. On 20 March 2000 the applicant's solicitors wrote to Mr Litster stating that "Mr Tosswill has elected to withdraw the caveat … and wants the matter adjourned on the papers with each party to pay its own costs. We are preparing the withdrawal of caveat for Mr Tosswill for execution and will provide it for you." Mr Litster indicated that this was unacceptable and that the respondent wished to ask for costs. Subsequently Mr Whitehead informed Mr Litster that he had a withdrawal of caveat signed by Mr Tosswill and arrangements were made for its collection by Mr Litster. Mr Whitehead indicated that because of a commitment to appear in the Family Court that morning he would not be attending the Supreme Court on behalf of his client, and in the event there was no appearance for the applicant when the matter came before Williams J. Counsel for the present respondent then read material justifying the removal of the caveat. The request for withdrawal of caveat dated 21 March 2000 that had been signed by the applicant was included in that material. So was the joint venture agreement. The latter document was not at that stage stamped, but subsequent events have proved that it did not need to be stamped. It was not "chargeable with stamp duty" and therefore not subject to the restrictive effect of s 4A of the Stamp Act 1894.

1. The only ground relied on in the original application for leave is that the joint venture agreement of 7 January 1998 was unstamped and should not have been received.  However in further material filed by the applicant in recent weeks he has sought to expand the grounds of the application, including his desire to rely on fresh evidence to prove a variety of allegations.  One of these is that his solicitors, Messrs Whitehead Payne, Lawyers, acted contrary to his instructions in handing his withdrawal of caveat to Mr Litster and in failing to appear on the application before Williams J.  Another is that the solicitors acting for the respondent should not have been acting for him because they had a conflict of interest.  Still another is that the joint venture agreement conferred a right upon "the financier" in that agreement to lodge a caveat over the land in question.  The agreement identifies the financier as Rockdili Pty Ltd, but the applicant alleges it was really intended that he, Mr Anthony Tosswill, be the financier, and in turn the party entitled to lodge a caveat.

1. In reliance upon the allegation that his solicitors acted contrary to their instructions to act for him he seeks to invoke rules 667 and 668 of the Uniform Civil Procedure Rules on the footing that this Court may set aside the order of Williams J on the basis that it was an "order made in the absence of a party".  It is unnecessary to determine whether in the circumstances this was an order made in the absence of a party for the purposes of the rule, as these submissions proceed upon a number of false premises.  His solicitors had ostensible authority to act for him both in relation to the release of the caveat and in relation to the conduct of the application before the court for its removal. Their statements of the applicant's willingness to withdraw the caveat were admissions upon which the respondent was entitled to rely in court.  Likewise, the respondent was entitled to rely upon the withdrawal of caveat that was supplied.

1. Furthermore, so far as the stamp duty argument is concerned, the respondent's material shows that the applicant subsequently arranged for the joint venture agreement to be assessed by the Stamps Office, and he produced it to the court during another proceeding on 15 January 2001.  The impressed stamp on the document is "no duty payable".  It would seem that it was not liable to duty as it did not pass or deal with property, but rather dealt with the relationship of the parties to the proposed joint venture.

1. In these circumstances the stamping point upon which the applicant wishes to rely is entirely without merit. The document was received without objection and it did not in any event require a stamp. Section 4A of the Stamp Act has no application. 

1. Similarly, the objection that the solicitors for the respondent had a conflict of interest has no legal merit.  Even if a conflict were shown, it does not follow that the court orders made in the cause of litigation in which such solicitors have acted are invalid.

1. In relation to the application to strike out the application as an abuse of process, the following sequence of events is instructive:

(a)        the costs awarded by Williams J were assessed at $8000;

(b)        the applicant failed to pay them;

(c)        the respondent issued a bankruptcy notice on 16 January 2001 and served it on 19 January 2001;

(d)        the act of bankruptcy would have been complete on 9 February 2001;

(e)        on 5 February 2001 the applicant filed an application to set aside the bankruptcy notice.  In part he relied upon the present application for leave to appeal;

(f)        on the following day, 6 February 2001, the applicant filed the present application for leave to appeal.

1. It is unnecessary to rule whether the application should fail as an abuse of process because counsel for the respondent, Mr Lilley, indicated that dismissal of the applicant 's application with costs would suffice for his purposes. 

1. The applicant's considerable delay has not been properly explained.  Furthermore, the proposed appeal would seem to be without merit.  In these circumstances the application should be dismissed with costs.  The respondent's application should be dismissed with no order as to costs.