REAL PROPERTY – Torrens title – Caveats – Whether notice of dealing given – Evidence of Titles Office practice – Admissibility and sufficiency – Form of notice – Transfer of Land Act 1958, ss.90(1) and 113(1) – Interpretation of Legislation Act1984, s.49(1)(a).
REAL PROPERTY – Torrens title – Mortgage – Alteration – Whether authorised and authorised in writing – Point abandoned below – Instruments Act1958, s.126.
PRACTICE AND PROCEDURE – Interest – Sum ordered to be held in trust pending trial – Whether successful claimant “the creditor” – Supreme Court Act1986, s.58(1).
PRACTICE AND PROCEDURE – Costs – Order that one defendant pay “plaintiff’s costs of the proceeding” – Held not to include plaintiff’s costs of claim against other defendant dismissed with costs – Rule in Kelly’s Directories v. Gavin & Lloyds [1901] 2 Ch.763 obsolete.
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APPEARANCES:
Counsel
Solicitors
For the appellant
Mr R.L. Berglund, Q.C. and Mr P.N. Wikrama
Leo Dimos & Associates
For the first-named respondent
Mr A. McK. Flower
W.E. Pearcey & Ivey
For the second-named respondent
Dr I.J. Hardingham, Q.C. and Mr I.S. Williams
Victorian Government Solicitor
TADGELL, J.A.:
Having had the benefit of reading in draft the reasons prepared by the other members of the Court, I need do little more than express my obligation to them and my agreement. I venture, however, to add some remarks of my own on two matters that have been dealt with by Batt, J.A.
The first concerns the meaning to be attributed to the expression “prepaying” in s.49(1)(a) of the Interpretation of Legislation Act1984. Although the expression, or one of its cognates, has long been part of statutory language here and elsewhere, the concept of prepaid post has never, so far as I know, been statutorily defined. So far as is now relevant, the concept owes its origins to the 19th century reforms in the English postal service for which Sir Rowland Hill is generally given credit. Before 1840 varying rates of postage were applied to letters individually, according to the distance travelled, payment being usually sought from the recipient. The charges, apart from being troublesome to calculate, tended to be expensive for long-distance mail and therefore often difficult to collect : addressees were wont to refuse to accept delivery by declining to pay. Moreover, in the days when private servants were commonly used for the purpose of metropolitan delivery, pre-paying a letter to be sent by the “two-penny post“ used to be thought by some to be “little short of an insult”[1] to an addressee of any serious rank. There appears also in those days to have been an apprehension by senders of mail that…
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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AGLC
Dimos v Willetts [2000] VSCA 154
Case
[2000] VSCA 154
Decision Date
CaseChat Overview and Summary
The case of Dimos v Willetts involved a dispute over the validity of a caveat lodged against a Torrens title property. The respondent, Dimos, sought a declaration that a caveat lodged by the appellant, Willetts, was invalid. The matter was heard in the Supreme Court of Victoria. The primary issue before the court was whether Willetts had provided proper notice of the dealing as required under the Transfer of Land Act 1958. This involved an interpretation of the relevant provisions of the Act and the admissibility and sufficiency of evidence regarding Titles Office practice. Additionally, the court examined whether the mortgage alteration was properly authorised and authorised in writing, as well as the issue of interest on sums held in trust pending the trial and the extent of the costs order against one of the defendants.
The court determined that Willetts had not provided proper notice of the dealing as required by s.90(1) of the Transfer of Land Act 1958. The court found that the notice provided was not sufficient to give Willetts priority over Dimos, who had registered a caveat without notice of the dealing. The court also held that the evidence of Titles Office practice was admissible and sufficient to establish the proper form of notice required. The issue of the mortgage alteration was not pursued by the parties. Regarding the interest, the court found that the successful party was not "the creditor" as defined in s.58(1) of the Supreme Court Act 1986 and therefore no interest was payable on the sum held in trust. Finally, the court ruled that the order for one defendant to pay the plaintiff’s costs of the proceeding did not include the costs of the claim against the other defendant, which was dismissed with costs.
The Supreme Court of Victoria ordered that Willetts' caveat be declared invalid and that the sum held in trust be returned to Dimos without interest. Willetts was ordered to pay Dimos' costs of the proceeding, excluding the costs of the dismissed claim against the other defendant. The court also directed that the costs be taxed on an indemnity basis.