Brooks v Rullo
[2015] SADC 73
•8 May 2015
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
BROOKS v RULLO
[2015] SADC 73
Judgment of His Honour Judge Tilmouth
8 May 2015
CONVEYANCING - LAND TITLES UNDER THE TORRENS SYSTEM - CAVEATS AGAINST DEALINGS - LAPSE, REMOVAL AND WITHDRAWAL
Application for removal of caveat granted.
De facto Relationships Act 1966 (SA) s 10; Custom Credit Corporation Limited v Ravi Nominees Pty Ltd (1992) 8 WAR 42; Real Property Act 1886 (SA) s 191(f), referred to.
BROOKS v RULLO
[2015] SADC 73
This matter first came before me in the short notice list on 11 March 2015, on an ex parte application by Ms Rullo ‘to release a caveat’ entered over real property owned by her. She sought and was granted permission to appear by way of telephone. When the matter was called on that day she failed to respond to several telephone calls. An order was made directing the Registrar to make further inquiries.
The order in question was entered in the underlying proceedings, a de facto property claim in which Mr Brooks was plaintiff and Ms Rullo was defendant. Those proceedings first issued out of this court in April 2004 with respect to a failed de facto relationship between the parties within the meaning of the De facto Relationships Act 1966 (SA).
In 2002 Ms Rollo purchased a property at Berri adjacent to a block of land owned by her parents, being the whole of the land comprised in Certificate of Title Register Book Volume 5266 Folio 532. This property formed a portion of a wider claim to the division of property sought under s 10 of the De facto Relationships Act.
Mr Brooks had a caveat placed over the title to the subject property so as to preserve any interest of his in the property pending resolution of the claim. Subsequently an interlocutory application was made by Ms Rullo seeking an order for the removal of the caveat (No. 9827910). An order was made on 26 November 2004, by a Judge of this court (now retired) extending the caveat until further order. Thereafter the course of the proceedings had a long and protracted interlocutory history, otherwise irrelevant except only to explain the length of time involved.
There is a note on the file made in the District Court Civil Registry, of a telephone call from a team leader of Lands Title SA of 22 January 2015. This note is to the effect that the caveat remains on the title and according to Lands Titles Office practice cannot be removed unless either a withdrawal of the caveat is lodged by Mr Brooks as caveator, or the court orders the office of the Registrar-General to remove it.
The original order made extending the caveat until further order was not expressly revoked. A further application was lodged again by Ms Rullo for the removal of the caveat in December 2008, however the court records suggest it was not pursued.
The matter ultimately came to trial before Judge Rice in August of 2008. Eventually the de facto claim was settled, discharging both parties financial obligations to each other, on conditions that Mr Brooks pay into the trust account of Cardone and Associates (then solicitors for Ms Rullo) the sum of $25,000 by way of two payments, the first of $13,000 by 25 August 2008, and the second of $12,000 by 23 February 2009, respectively. Order no. 6 of his Honour’s orders made on 23 August 2008, reads as follows:
…
6. That the Plaintiff do deliver to the Defendant’s Solicitors within 7 days of the date hereof a Withdrawal of Caveat number X9827910 together with the Solicitor’s Trust Account cheque payable to the Registrar-General in the sum of $112.00.
The $112 referred to therein no doubt reflected the cost of lodging the application for removal at that time.
As a result of the enquiries I directed the Registrar to make, Ms Cardone responded by advising that Mr Brooks had not paid the full amount required pursuant to the above orders.
Ms Cardone also disclosed that it was agreed between the parties that the amounts to be paid by Mr Brooks were to be offset against Ms Rullo’s legal fees. There remain fees outstanding in the sum of $11,161.48. It is apparent however that none of the funds that were received, were applied to the $112.00 for the purposes of discharging the caveat. Ms Cardone further acknowledged receiving a signed withdrawal of caveat on 19 February 2009, executed by Mr Brooks.
I listed the matter for directions on 1 May 2015 when Ms Cardone appeared as amicus curiae (for which the court is obliged). She confirmed the above matters. She handed over the signed application for the withdrawal executed by Mr Brooks, explained her predicament and expressed no objection to the court making an order directing the Registrar-General to remove the caveat.
There are three features of significance which lean heavily towards an order removing the caveat. The first is that the caveat continues to act as an unwarranted clog on an otherwise indefeasible title. The second is that the orders of Judge Rice made in August 2008 were tantamount to a revision of the previous orders extending the caveat. The third is that Mr Brooks has long since abandoned any interest to maintain the caveat to the point that he no longer has any residual interest in the property to protect: Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd.[1]
[1] (1992) 8 WAR 42, 48.
Section 191(f) of the Real Property Act 1886 (SA) furnishes the court with the power to order the Registrar-General to remove a caveat.
In the combined circumstances it is entirely appropriate therefore to order that the Registrar-General remove caveat No. 9827910 over the Certificate of Title Register Book Volume 5266 Folio 532, without fee, cost or charge to either party to these proceedings.
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