Carew-Reid v First Company Mortgage Home Loans Pty Ltd Summary

SUPREME COURT OF QUEENSLAND

CITATION: Carew-Reid v First Company Mortgage Home Loans P/L [2006]
QCA 189
PARTIES: JOHN HASTINGS CAREW-REID
(appellant/respondent)
v
FIRST COMPANY MORTGAGE HOME LOANS PTY
LTD ACN 104 268 448
(respondent/applicant)
FILE NO/S: Appeal No 2368 of 2006
SC No 663 of 2006
DIVISION: Court of Appeal
PROCEEDING: Application to Strike Out
ORIGINATING
COURT: Supreme Court at Brisbane
DELIVERED EX
TEMPORE ON: 2 June 2006
DELIVERED AT: Brisbane
HEARING DATE: 2 June 2006
JUDGES: Williams and Holmes JJA and Helman J
Separate reasons for judgment of each member of the Court,
each concurring as to the orders made
ORDER: Notice of Appeal struck out with costs
CATCHWORDS: REAL PROPERTY – GENERAL PRINCIPLES – INCIDENTS OF ESTATES AND INTERESTS IN LAND – OTHER INTERESTS IN LAND - Where the respondent was the registered proprietor of a property subject to a mortgage in favour of the applicant – upon breach of the mortgage agreement the applicant took steps to exercise power of sale – where the respondent had placed a caveat on the property claiming an improper exercise of the power of sale – whether the caveat should have been removed by a Supreme Court Judge
COUNSEL: N H Ferrett for the applicant
The respondent appeared on his own behalf
SOLICITORS: Cooper Grace Ward for the applicant
The respondent appeared on his own behalf

WILLIAMS JA: On the 21st of March 2006, John Hastings Carew- Reid filed a notice of appeal against an order of Justice Philippides made on the 23rd of February 2006. By that order, her Honour ordered that a caveat lodged by Carew-Reid over property at 109 Red Oak Drive, Tallai be removed. Carew-Reid had been the registered proprietor of that property which was subject to a mortgage in favour of the current applicant, First Mortgage Company Home Loans Pty Ltd.

Consequent upon breach of that mortgage agreement, First Mortgage Company took steps to exercise power of sale. The caveat which was dated the 11th of October 2006 claimed an interest on the basis that there was an improper exercise of the power of sale.

The matter first came before Justice Fryberg, but at the request of Carew-Reid it was adjourned. It then came before Justice Philippides and there was an extensive hearing before her Honour. The transcript goes for many pages and discloses that Mr Carew-Reid was given every opportunity of advancing reasons in support of the caveat. Ultimately for reasons which her Honour gave, she concluded that the relief to which Carew-Reid was entitled, if anything, was damages. She came to the conclusion that on the balance of convenience the caveat ought to be removed.

I can see no error of law in her Honour's reasons. The grounds stated in the notice of appeal are in the main spurious and raise issues of fraud involving persons and entities who are not parties to the appeal. The Court of Appeal could not on a hearing of the appeal embark upon a consideration of those matters. Those matters may entitle Carew-Reid, if established by evidence, to relief. If there is substance in the allegations he makes he would have an entitlement to damages, but that does not mean that the order removing the caveat was wrong.

I should also point out that, consequent upon the removal of the caveat by the order of Justice Philippides, the purchasers pursuant to the contract of sale resulting from the mortgagee exercising power of sale have become registered proprietors of the land in question. There is in my view no substance in any of the grounds of appeal. It is clearly an abuse of process and should be struck out with costs and I would so order.

HOLMES J: I agree.

HELMAN J: I agree.

WILLIAMS JA: Well, the order is that the notice of appeal is struck out with costs and I direct the Registrar to forward a copy of those reasons for judgment to the appellant Carew-Reid

at his address for service.

-----

In the Supreme Court of Queensland, the applicant, Carew-Reid, sought to enforce a power of sale over a property owned by the respondent, First Company Mortgage Home Loans Pty Ltd. The applicant, having been the registered proprietor of the property, was subject to a mortgage agreement with the respondent. Upon a breach of this agreement, the applicant exercised its power of sale, which led the respondent to lodge a caveat over the property. The respondent argued that the exercise of the power of sale was improper and sought to have the caveat upheld by the court.

The central issue before the court was whether the Supreme Court Judge had correctly exercised their discretion in removing the caveat lodged by the respondent. The court had to determine whether the applicant's exercise of the power of sale was indeed improper, which would warrant the continuation of the caveat. Additionally, the court needed to consider the respondent's right to challenge the power of sale through the lodging of a caveat and whether the judge's decision to remove it was justified.

The court found that the judge had properly exercised their discretion in removing the caveat. The respondent had not provided sufficient evidence to demonstrate that the power of sale had been exercised improperly. The court held that the judge had correctly considered the relevant factors and exercised their discretion appropriately. As a result, the appeal was dismissed, and the notice of appeal was struck out with costs awarded against the respondent.

The final orders of the court were that the notice of appeal be struck out, and costs were to be paid by the respondent to the applicant. The court's decision reinforced the principle that a judge's discretion in such matters is to be respected unless there is a clear demonstration that it was exercised incorrectly.

Carew-Reid v First Company Mortgage Home Loans Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	Carew-Reid v First Company Mortgage Home Loans P/L [2006] QCA 189
PARTIES:	JOHN HASTINGS CAREW-REID (appellant/respondent) v FIRST COMPANY MORTGAGE HOME LOANS PTY LTD ACN 104 268 448 (respondent/applicant)
FILE NO/S:	Appeal No 2368 of 2006 SC No 663 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Application to Strike Out
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX
TEMPORE ON:	2 June 2006
DELIVERED AT:	Brisbane
HEARING DATE:	2 June 2006
JUDGES:	Williams and Holmes JJA and Helman J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Notice of Appeal struck out with costs
CATCHWORDS:	REAL PROPERTY – GENERAL PRINCIPLES – INCIDENTS OF ESTATES AND INTERESTS IN LAND – OTHER INTERESTS IN LAND - Where the respondent was the registered proprietor of a property subject to a mortgage in favour of the applicant – upon breach of the mortgage agreement the applicant took steps to exercise power of sale – where the respondent had placed a caveat on the property claiming an improper exercise of the power of sale – whether the caveat should have been removed by a Supreme Court Judge
COUNSEL:	N H Ferrett for the applicant The respondent appeared on his own behalf
SOLICITORS:	Cooper Grace Ward for the applicant The respondent appeared on his own behalf