Boral Limited v Elham Aghili - [2009] ACTCA 18

BORAL LIMITED v ELHAM AGHILI
[2009] ACTCA 18 (12 AUGUST 2009)

APPEAL – urgent orders sought before start of proceedings – application to extend caveat refused by Master – whether necessary to consider issues to be determined in future proceedings.

EX TEMPORE JUDGMENT

Court Procedures Rules 2006 (ACT), r 706
Land Titles Act 1925 (ACT), s 107

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 18-2008
No. SC 607 of 2008

Judges: Gray P, Penfold and Buchanan JJ
Court of Appeal of the Australian Capital Territory
Date: 12 August 2009

IN THE SUPREME COURT OF THE       )          No. ACTCA 18-2008
  )          No. SC 607 of 2008
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:BORAL LIMITED
Appellant

AND:ELHAM AGHILI
Respondent

ORDER

Judges:  Gray P, Penfold and Buchanan JJ
Date:  12 August 2009
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be upheld.

Under s 107 of the Land Titles Act 1925 (ACT), the Registrar-General enter upon the Register a caveat in the same terms as the caveat that was removed previously.

IN THE SUPREME COURT OF THE       )          No. ACTCA 18-2008
  )          No. SC 607 of 2008
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:BORAL LIMITED
Appellant

AND:ELHAM AGHILI
Respondent

Judges:  Gray P, Penfold and Buchanan JJ
Date:  12 August 2009
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

This is an appeal from an order of the Master not extending the operation of a caveat. The application [to extend the caveat] was by way of an originating application and was made ex parte. [The caveat dated 18 July 2007 described the estate or interest to be protected as “Equitable interest pursuant to Clause 9 of a written guarantee dated 13 May 2004 whereby the Registered Proprietor agreed to charge all his equitable interest in freehold and leasehold property of which he was a registered proprietor in favour of the Caveator.”]

It seems plain from the papers that the Master should not have embarked upon issues concerning the construction of the guarantee or issues concerning the enforcement of the charge.

Court Procedures Rules 2006 (ACT) (CPR), r 706(2)(c), provides a procedure to extend the operation of a caveat under the Land Titles Act 1925 (ACT) (Land Titles Act) and that would appear to be a process available, even if there are other processes which could be said to be available for the extension of a caveat.

[Rule 706 provides:

706 Urgent orders before start of proceeding
(NSW r 25.2; Qld r 254)

(1) This rule applies—
(a)in urgent circumstances; and
(b)if the person applying for an order mentioned in subrule (2) intends to start a proceeding.

(2)Before the proceeding starts, the court may do any of the following as if the…

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: [2009] ACTCA 18
Decision Date

CaseChat Overview and Summary

Boral Limited appealed to the Court of Appeal of the Australian Capital Territory against an order of the Master refusing to extend the operation of a caveat. The application to extend the caveat had been made ex parte. The caveat sought to protect an equitable interest pursuant to a written guarantee, by which the registered proprietor agreed to charge all his equitable interest in freehold and leasehold property in favour of the caveator.

The Court of Appeal was required to determine whether the Master had erred in considering the substantive issues concerning the construction of the guarantee and the enforcement of the charge, rather than the procedural requirements for extending a caveat. Specifically, the Court needed to consider the application of Rule 706 of the Court Procedures Rules 2006 (ACT), which provides a mechanism for obtaining urgent orders, including the extension of a caveat, before proceedings have formally commenced.

The Court reasoned that the Master should not have embarked upon the substantive issues of the guarantee's construction or the charge's enforcement, as these were matters to be determined in substantive proceedings. Rule 706 of the Court Procedures Rules 2006 (ACT) provided a specific procedure for extending the operation of a caveat in urgent circumstances, even if other processes for extension were available. The Master had failed to consider the issues raised by Rule 706, including the requirement for issuing process to start proceedings. The Court found that the appeal should be upheld on this basis.

The Court further ordered that the Registrar-General enter a caveat on the Register in the same terms as the caveat that had been removed. This was done under section 107 of the Land Titles Act 1925 (ACT) to restore the parties to their position before the Master's order. The Court also extended an existing injunction restraining the respondent from dealing with the property until 5.00 pm on 13 August 2009, to allow the appellant time to file the new caveat. The appeal was upheld, with no order as to costs.

Orders