Cousins Securities Pty Ltd v CEC Group Ltd - [2007] QCA 192

SUPREME COURT OF QUEENSLAND

CITATION:

Cousins Securities P/L & Ors v CEC Group Ltd & Anor; CEC Group Ltd v Cousins Securities P/L & Ors [2007]
QCA 192

PARTIES:

COUSINS SECURITIES PTY LTD ACN 080 152 914
(first plaintiff/first respondent)
RUSSELL KINGSLEY COUSINS
(second plaintiff/second respondent)
COLLEEN JUDITH COUSINS
(third plaintiff/third respondent)
GERALD ANDREJIC PTY LTD ACN 107 403 056
(fourth plaintiff/fourth respondent)
GERALD ANDREJIC
(fifth plaintiff/fifth respondent)
v
CEC GROUP LIMITED ACN 010 025 831
(first defendant/appellant)
EDMONTON PROJECTS PTY LTD ACN 107 961 359
(second defendant/not party to appeal)

CEC GROUP LIMITED ACN 010 025 831
(applicant/appellant)
v
COUSINS SECURITIES PTY LTD ACN 080 152 914
(first respondent/first respondent)
RUSSELL KINGSLEY COUSINS
(second respondent/second respondent)
COLLEEN JUDITH COUSINS
(third respondent/third respondent)
EDMONTON PROJECTS PTY LTD ACN 107 961 359
(fourth respondent/not party to appeal)

FILE NO/S:

Appeal No 9793 of 2006
Appeal No 9794 of 2006
SC No 6379 of 2006
SC No 7961 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

8 June 2007

DELIVERED AT:

Brisbane

HEARING DATE:

26 February 2007

JUDGES:

McMurdo P, Holmes JA and Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. In CA No 9793 of 2006, appeal dismissed with costs

2. In CA No 9794 of 2006:

(a) appeal allowed to the limited extent of varying the order of 31 October 2006 by adding at the commencement of para 1 of that order the words: "Upon the undertaking of the first respondent Cousins Securities Pty Ltd ACN 080 152 914 and the second respondent Russell Kingsley Cousins and the third respondent Colleen Judith Cousins as to damages in the usual form …"

(b) otherwise, the appeal is dismissed with costs

CATCHWORDS:

CONVEYANCING – LAND TITLES UNDER THE TORRENS SYSTEM – BRINGING LAND UNDER THE ACT – PRACTICE WHERE CONFLICTING CLAIMS – LAPSE, REMOVAL AND WITHDRAWAL OF CAVEATS – LAPSE – TIME AT WHICH CAVEAT LAPSES – where the appellant entered into a joint venture with the first respondent – where the appellant repaid the debt owing on land purchased by the joint venture and the mortgage was assigned to them – where the first, second and third respondents lodged a caveat against registration of any instrument over the land – whether the respondents failed to start proceedings to establish the interest claimed under the caveat, as under s 126(4) of the Land Title Act 1994 (Qld), within three months – whether this caused the caveat to lapse

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PLEADING – STATEMENT OF CLAIM – whether in order to start a proceeding to establish an interest under a caveat the relief sought must be stated in the claim and not merely the statement of claim

CONVEYANCING – LAND TITLES UNDER THE TORRENS SYSTEM – BRINGING LAND UNDER THE ACT – PRACTICE WHERE CONFLICTING CLAIMS – LAPSE,…

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: [2007] QCA 192
Decision Date: 8 June 2007

CaseChat Overview and Summary

Cousins Securities Pty Ltd appealed against the decision of the primary judge to find that the respondents, CEC Group Ltd and others, had not failed to bring proceedings to establish their interest under a caveat within the three-month period prescribed by s 126(4) of the Land Title Act 1994 (Qld). The respondents had lodged a caveat against registration of any instrument over the land which was the subject of a joint venture between Cousins Securities Pty Ltd and the first respondent. The appellant had repaid the debt owing on the land and had the mortgage assigned to it. The respondents sought to establish their interest under the caveat, but the primary judge found that they had not done so within the prescribed period. The appellant also argued that the caveat was too wide in scope as it covered the entire Lot 9, whereas the respondents' interest was only in 2,521 square metres.

The court was required to determine whether the respondents had failed to start proceedings to establish their interest under the caveat within three months, and whether the caveat was too wide in scope. The court also had to decide whether there was a serious question to be tried as to the respondents' entitlement to the interest claimed under the caveat. The court had to consider the provisions of s 126(4) of the Land Title Act 1994 (Qld), which requires that proceedings to establish an interest under a caveat must be started within three months. The court also had to consider the extent to which the caveat was valid, and whether it was too wide in scope.

The court found that there was no error in the primary judge's finding that the respondents had not failed to start proceedings to establish their interest under the caveat within three months. The court held that the respondents had not taken any steps to establish their interest under the caveat within the prescribed period, and that the caveat had therefore lapsed. The court also found that the caveat was too wide in scope as it covered the entire Lot 9, whereas the respondents' interest was only in 2,521 square metres. However, the court found that there was a serious question to be tried as to the respondents' entitlement to the interest claimed under the caveat, and that the primary judge had not erred in finding this. The court varied the order of the primary judge to include an undertaking as to damages by the appellant and dismissed the appeal with costs.

Orders

Orders of the court

1. In CA No 9793 of 2006, appeal dismissed with costs

2. In CA No 9794 of 2006:

(a) appeal allowed to the limited extent of varying the order of 31 October 2006 by adding at the commencement of para 1 of that order the words: "Upon the undertaking of the first respondent Cousins Securities Pty Ltd ACN 080 152 914 and the second respondent Russell Kingsley Cousins and the third respondent Colleen Judith Cousins as to damages in the usual form …"

(b) otherwise, the appeal is dismissed with costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Cousins Securities P/L & Ors v CEC Group Ltd & Anor; CEC Group Ltd v Cousins Securities P/L & Ors [2007] QCA 192
PARTIES:	COUSINS SECURITIES PTY LTD ACN 080 152 914 (first plaintiff/first respondent) RUSSELL KINGSLEY COUSINS (second plaintiff/second respondent) COLLEEN JUDITH COUSINS (third plaintiff/third respondent) GERALD ANDREJIC PTY LTD ACN 107 403 056 (fourth plaintiff/fourth respondent) GERALD ANDREJIC (fifth plaintiff/fifth respondent) v CEC GROUP LIMITED ACN 010 025 831 (first defendant/appellant) EDMONTON PROJECTS PTY LTD ACN 107 961 359 (second defendant/not party to appeal) CEC GROUP LIMITED ACN 010 025 831 (applicant/appellant) v COUSINS SECURITIES PTY LTD ACN 080 152 914 (first respondent/first respondent) RUSSELL KINGSLEY COUSINS (second respondent/second respondent) COLLEEN JUDITH COUSINS (third respondent/third respondent) EDMONTON PROJECTS PTY LTD ACN 107 961 359 (fourth respondent/not party to appeal)
FILE NO/S:	Appeal No 9793 of 2006 Appeal No 9794 of 2006 SC No 6379 of 2006 SC No 7961 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	8 June 2007
DELIVERED AT:	Brisbane
HEARING DATE:	26 February 2007
JUDGES:	McMurdo P, Holmes JA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. In CA No 9793 of 2006, appeal dismissed with costs 2. In CA No 9794 of 2006: (a) appeal allowed to the limited extent of varying the order of 31 October 2006 by adding at the commencement of para 1 of that order the words: "Upon the undertaking of the first respondent Cousins Securities Pty Ltd ACN 080 152 914 and the second respondent Russell Kingsley Cousins and the third respondent Colleen Judith Cousins as to damages in the usual form …" (b) otherwise, the appeal is dismissed with costs
CATCHWORDS:	CONVEYANCING – LAND TITLES UNDER THE TORRENS SYSTEM – BRINGING LAND UNDER THE ACT – PRACTICE WHERE CONFLICTING CLAIMS – LAPSE, REMOVAL AND WITHDRAWAL OF CAVEATS – LAPSE – TIME AT WHICH CAVEAT LAPSES – where the appellant entered into a joint venture with the first respondent – where the appellant repaid the debt owing on land purchased by the joint venture and the mortgage was assigned to them – where the first, second and third respondents lodged a caveat against registration of any instrument over the land – whether the respondents failed to start proceedings to establish the interest claimed under the caveat, as under s 126(4) of the Land Title Act 1994 (Qld), within three months – whether this caused the caveat to lapse PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PLEADING – STATEMENT OF CLAIM – whether in order to start a proceeding to establish an interest under a caveat the relief sought must be stated in the claim and not merely the statement of claim CONVEYANCING – LAND TITLES UNDER THE TORRENS SYSTEM – BRINGING LAND UNDER THE ACT – PRACTICE WHERE CONFLICTING CLAIMS – LAPSE,…