Cawood v Infraworth Pty Ltd - [1989] HCATrans 287

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No Bl9 of 1989
B e t w e e n -
MARGARET ANN CAWOOD

Applicant

and
INFRAWORTH PTY LTD

Respondent

Application for special
leave to appeal

BRENNAN J

GAUDRON J

Cawood

TRANSCRIPT OF PROCEEDINGS

BROM BRISBANE BY VIDEO LINK TO CANBERRA ON FRIDAY, 17 NOVEMBER 1989, AT 9.33 AM:

C2Tl/1/JH

17/11/89

MR F.L. HARRISON, QC: May it please the Court, I appear with
my learned friend, MR L.D. BOWDEN, for the applicant.
(instructed by Wockner Partners)

MR G.L. DAVIES, QC: May it please the Court, I appear with
my learned friend, MR D.J.S. JACKSON, for the

respondent. (instructed by Hopgood & Ganim)

BRENNAN J: Yes, Mr Harrison?

MR HARRISON:

If the Court pleases, in this matter the

respondent purchaser who purchased under the
standard real estate institute form of contract in
corrnnon use in Queenslan~ which contract is to be
found at page 57 of the application book,
refused to complete the purchase and purported to
rescind the contract on the ground that requests to
withdraw two caveats though lodged had not been
registered at the date provided for settlement
which was the date after the date in the contract but
the parties had extended the contract by one day.
I should say that the contract in the standard form
provides that time is of the essence and unfortunately
in the reproduction of the contract that particular
clause, clause 23, has been cut off but it is a
contract providing that time is of the essence.

BRENNAN J:

And it remained of the essence.

MR HARRISON:

And it remained of the essence.

Your Honours,

the purchaser contended that the transfer tendered
at settlement was not capable of irrnnediate
registration within clause 2 of the contract which is
on page 58 of the book and provides so far as is
relevant:
The balance of the purchase price shall be
paid on the date for completion stated in
Item O in exchange for possession (such
possession to be vacant except for tenancies

stated in Item M) together with a duly
executed transfer in favour of the
Purchaser capable of irrnnediate registration
(after stamping)-

and so on.

C2Tl/2/JH 2 17/11/89
Cawood

MR HARRISON (continuing):

The judge at first instance

accented the submission of the purchaser that
by reason of the caveats and the fact that
the requests to remove them had not been
registered, the transfer itself was not capable
of immediate registration within that provision. view in the judgment of Chief Justice Ma~rossan, The Full Court by a majority took the contrary
as he was at the time of judgment, with whom
Mr Justice Kelly agreed at page 24 of the book, whilst Mr Justice Shepherdson at pages 25 to 27

dissented. Howeve½ the majority went on to
hold that the nevertheless the nurchaser was
entitled to insist that the withdrawals be
registered at the settlement date, notwithstanding
that they had held…

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: [1989] HCATrans 287
Decision Date

CaseChat Overview and Summary

This case concerns an application for special leave to appeal to the High Court of Australia. The applicant, Cawood, sought to appeal a decision of the Full Court of Queensland concerning a contract for the sale of land. The respondent, Infraworth Pty Ltd, had refused to complete the purchase and purported to rescind the contract on the grounds that requests to withdraw two caveats had not been registered by the settlement date, despite the parties having extended the settlement by one day. The contract, a standard Real Estate Institute of Queensland form, stipulated that time was of the essence.

The primary legal issues before the High Court were: firstly, when the withdrawal of a caveat takes effect, and whether it operates by its own force or requires registration; and secondly, whether, notwithstanding the contractual provisions, the purchaser was entitled to insist on the registration of the caveat withdrawals at the settlement date. The applicant argued that if a withdrawal of a caveat operates by its own force upon lodgement, then the purchaser was not entitled to demand registration before settlement, as the caveat would have ceased to be in force.

The Full Court of Queensland, by a majority, had held that the transfer tendered at settlement was capable of immediate registration, contrary to the decision of the judge at first instance. However, the majority also held that the purchaser was nevertheless entitled to insist on the registration of the caveat withdrawals at the settlement date. The applicant’s submission was that the withdrawal of a caveat takes effect upon lodgement, rendering the caveat no longer in force, and that the purchaser's insistence on registration was therefore unwarranted. The resolution of this issue depended on whether a caveat is considered an instrument under the Torrens system and how it is removed or withdrawn.

The applicant sought special leave to appeal on the basis that these questions of law were of general public importance, particularly in Queensland. The outcome of the application for special leave to appeal was not detailed in the provided text.

Orders