Barlow & Barlow v B & E G Services Pty Ltd and Registrar General, Lands Titles Office

[2005] SADC 108

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

BARLOW & BARLOW v B & E G SERVICES PTY LTD AND REGISTRAR GENERAL, LANDS TITLES OFFICE

Reasons of His Honour Judge Anderson

24 August 2005

PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - ORDER FOR COSTS ON INDEMNITY BASIS

Institution of injunctive proceedings parallel to application to warn caveat - not supported by any cause of action - indemnity costs granted.

Real Property Act 1886 s191(e), referred to.

BARLOW & BARLOW v B & E G SERVICES PTY LTD AND REGISTRAR GENERAL, LANDS TITLES OFFICE
[2005] SADC 108

Judge Anderson
Civil

1. The Plaintiffs issued proceedings against the Defendants on 5 April 2005.  The relief sought was as set out in a Notice for Specific Directions filed on that day.

2. Orders were sought in injunctive form requiring the first Defendant to consent to the transfer of certain land, then owned by the Plaintiffs, to a third party.  A further order was sought against the second Defendant should the first Defendant fail to comply with such an order.

3. As it happened, no orders were made as the Plaintiffs and first Defendant reached an agreement whereby consent was given to the proposed transfer.

4. There remained the question of costs flowing from the Plaintiffs’ institution of the proceedings.

5. It is necessary to briefly set out the history of the relationship between the Plaintiffs and the first Defendant.

6. This is discernable from the affidavits, the tendered correspondence and from what was said on the topic from the Bar table without challenge.

7. The first Defendant purchased certain land from the Plaintiffs in 2002.  On 19 September 2003 the first Defendant caused a permissive caveat to be lodged on the title of the Plaintiffs’ adjacent land.

8. On 24 March 2005 the solicitor for first Defendant wrote to the plaintiff’s agent enclosing an Encumberance designed to be executed by those parties to allow the lifting of that caveat.  No reply was received.

9. The Plaintiffs’ conveyancer advised the first Defendant’s solicitor on 23 February 2005 by letter of the sale by the Plaintiffs of the land subject to the caveat.  That letter sought “your client’s requirements to enable the caveat to be withdrawn.”  By correspondence of 23 March 2005 the conveyancer sought the first Defendant’s “consent,” pursuant to the terms of the caveat, to the registration of the transfer and of a mortgage.  That letter noted the preservation of the caveat were such a course to be followed.  No positive response was received.  Indeed, to the contrary.

10. On 29 March 2005 the Plaintiffs warned the caveat in accordance with the provisions of s191(e) of the Real Property Act 1886 (“the Act”).  On 31 March 2005 the first Defendant wrote to the Plaintiff’s solicitor asking, inter alia “for the immediate withdrawal of their application for the removal of the caveat.”

11. Notice of the Plaintiff’s warning of the caveat was sent to the first Defendant by the Registrar General under cover of a letter, dated 4^th March 2005. Thereafter, a further similar, but correct, advice, dated 11 April 2005, was sent. The first Defendant received the first incorrectly dated advice on 8 April 2005. Of course, that notice was a nonsense because, due to the incorrect date, it was impossible for the first Defendant to act as s191 permitted. The subsequent correct notice expired on 2 May 2005.

12. Despite having warned the caveat, the Plaintiffs issued these proceedings on 5 April 2005.

13. The matter came on before me at midday on 6 April 2005.  Mr Scragg appeared for the Plaintiffs and Mr Blight of counsel for the first Defendant.  Dr Lake appeared for the Registrar General.

14. Because of the short notice, the matter was then adjourned, with directions, until 18 April 2005.  It was called on by consent on 13 April 2005 and I was advised of the resolution to which I have earlier referred.  It was then adjourned until 27 April 2005 when I heard submissions on the question of costs.

15. At the outset, may I say that I agree with Dr Lake that the joining of the Registrar General in this action was completely misconceived. Even if the matter was not within the bounds of s191 of the Act, the Registrar General is required to comply with any order of the Court as here contemplated. There was no need for that Officer to be joined in proceedings to ensure such compliance.

16. I understood Mr Scragg to not, in any substantial way, resist the order for costs sought by Dr Lake.  It is an order to which she is entitled.  There is no basis upon which such costs might be paid by any party other than the Plaintiffs as was, but faintly, suggested by Mr Scragg.

17. The substantial issue in the question of costs is as between the Plaintiff and the first Defendant.

18. The Plaintiff seeks an order for costs on the basis that the negotiated resolution of this matter between the parties in some way justified the institution of the proceedings.

19. It is asserted that the Plaintiff’s had a common law and/or equitable right to seek to have the subject title “unclogged” by instituting proceedings in this Court requiring the first Defendant to consent to the transfer of the Plaintiff’s interest in the subject land.  No other cause of action has been offered.

20. In reality, no cause of action at law or in equity has been identified by the Plaintiffs to enable them to institute parallel proceedings to the warning of the caveat.  That such proceedings may be instituted is, in my opinion, undoubted, but they must be properly founded.

21. Here, because of such a failure, there was never any prospect of the proceedings being successful.  Accordingly, the first Defendant is entitled to its costs.

22. I order that the Plaintiff pay the costs of the first and second Defendants.  Because the proceedings against each defendant were misconceived these are to be indemnity costs to be agreed or taxed.