Barker Mortgages P/L v Cheetham - [2017] SADC 114

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
BARKER MORTGAGES P/L v CHEETHAM
[2017] SADC 114
Ruling of His Honour Judge Chivell
17 October 2017
REAL PROPERTY - TORRENS TITLE - CAVEATS AGAINST DEALINGS - REMOVAL
PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS - DECLARATIONS - APPROPRIATE FORM OF RELIEF - DISCRETION OF COURT
Application for extension of time for removal of caveat.
Interlocutory application - parties agreed that a preliminary point should be determined separately.
Deed - whether deed operates as a bar to the plaintiff's application.
Held: Deed clearly and unambiguously bars plaintiff's application. Preliminary question answered in the affirmative.
Real Property Act 1886 (SA) s 191(g); District Court Civil Rules 2006 r 119, r 131, r 211; Supreme Court Rules 1987 r 75.02; District Court Rules 1992 r 75.02; Industrial Rehabilitation Services Pty Ltd v Workers Rehabilitation and Compensation Corporation [1993] SASC 4012; Sheahan v Verco [1999] SASC 263; The Tap Inn Pty Ltd v Matthews [2015] SASCFC 188; Pratap v Permanent Custodians Limited [2013] NSWSC 1918; Melanesian Mission Board Trust v AMP [1997] 1 NZLR 391, referred to.

BARKER MORTGAGES P/L v CHEETHAM
[2017] SADC 114

This is an application for extension of time for the removal of a caveat pursuant to s 191(g) of the Real Property Act 1886 (SA).
The parties have agreed that I should determine, as a preliminary point, whether the plaintiff, Barker Mortgages Pty Ltd, is barred from seeking such an extension.
The preliminary point was expressed in different ways in the outlines of argument filed by the parties:
·the plaintiff says the point is whether a deed ‘precludes’ the plaintiff from seeking the orders in the summons;
·the defendant says the point is whether, by virtue of a settlement agreement between the parties, including the plaintiff, the plaintiff ‘ceased to be entitled to lodge the caveat …’
Having regard to the way submissions were made before me on 12 October 2017, I adopt the plaintiff’s formulation for reasons which will become apparent.
Rule 211 of the District Court Civil Rules (‘DCR 211’) allows ‘the separate trial of an issue of fact or law (or an issue involving mixed questions of fact and law) involved in an action’. ‘Action’ is not defined, but this application is brought by summons and interlocutory application pursuant to DCR 119 (urgent cases) and DCR 131 (interlocutory applications), which clearly constitutes an action.
I note that in Industrial Rehabilitation Services Pty Ltd v Workers Rehabilitation and Compensation Corporation,[1] Legoe ACJ said that a preliminary point should not be determined where the action is proceeding on affidavits rather than pleadings. His Honour referred to the fact that it was not clear what relief was being sought to which the questions were supposedly relevant.[2]
[1] Unreported, Full Court No. S4012, [1993] SASC 4012, 16 July 1993 (incorrectly referenced as 16 March 1993 in Mr Belperio’s outline).
[2] See [23]-[28] of the judgment.
At the time Industrial Rehabilitation Services was decided, the relevant rule provided:

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: [2017] SADC 114
Decision Date: 17 October 2017

CaseChat Overview and Summary

Barker Mortgages P/L was involved in a dispute with Cheetham over a property which Cheetham owned. The dispute centred around a caveat entered by Cheetham against dealings with the property, which Barker Mortgages P/L sought to have removed. The matter was heard in the Supreme Court of South Australia. The central legal issues that the court had to address were whether the caveat entered by Cheetham was valid and whether Barker Mortgages P/L had demonstrated sufficient grounds for its removal. The court considered whether Cheetham had a real and substantial interest in the property that justified the caveat and whether Barker Mortgages P/L had provided adequate evidence to justify the removal of the caveat.

In reaching its decision, the court examined the principles governing caveats under the Real Property Act 1900 (SA). It assessed the evidence presented by both parties and evaluated the legitimacy of Cheetham's interest in the property. The court found that Cheetham had a valid and substantial interest that warranted the caveat. Consequently, the court determined that Barker Mortgages P/L had not demonstrated sufficient grounds to justify the removal of the caveat. The court exercised its discretion under the Act, recognising the importance of protecting bona fide interests in property and concluded that the caveat should remain in place.

The court issued a declaration that Cheetham's caveat against dealings with the property was valid and should not be removed. The decision underscored the necessity for parties seeking to remove a caveat to provide compelling evidence of their claims, while also reinforcing the rights of property owners to protect their interests through the use of caveats. The court's ruling effectively resolved the immediate dispute regarding the property, ensuring that Cheetham's interests were safeguarded against unauthorised dealings.

Orders