Dinh v. Dang

[2007] QSC 3

SUPREME COURT OF QUEENSLAND

CITATION:

Dinh v Dang [2007] QSC 003

PARTIES:

QUANG CONG DINH
(applicant)
v
NUOI THI DANG
(respondent)

FILE NO:

BS9935 of 2006

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

11 January 2007

DELIVERED AT:

Brisbane

HEARING DATE:

21 December 2006

JUDGE:

Chesterman J

ORDER:

1.    Caveat dealing no. 708231307 over lot 172 on SP 125046 County of Stanley, Parish of Oxley, title reference 50307247 be removed;

2.    the respondent pay the applicant’s costs of the application to be assessed on the standard basis; and

3.    action no. BD3570/04 be removed from the District Court of Queensland to this Court.

CATCHWORDS:

CONVEYANCING – LAND TITLES UNDER THE TORRENS SYSTEM – BRINGING LAND UNDER THE ACT – PRACTICE WHERE CONFLICTING CLAIMS – LAPSE, REMOVAL AND WITHDRAWAL OF CAVEATS – REMOVAL AND WITHDRAWAL – respondent lodged caveat over applicant’s land, claiming equitable interest as unregistered mortgagee – respondent alleges existence of loan secured over the applicant’s land – transaction entirely oral – application of s 59 of the Property Law Act 1974 (Qld) – whether alleged acts of part performance are capable of sustaining a caveatable interest

Land Title Act 1994 (Qld), s 127
Property Law Act 1974 (Qld), s 59

Cooney v Burns (1922) 30 CLR 216, followed
Francis v Francis [1952] VLR 321, distinguished
Maddison v Alderson (1888) 8 App Cas 467, followed
McBride v Sandland (1918) 25 CLR 69, followed

Regent v Millett (1976) 133 CLR 679, considered

COUNSEL:

Mr N J Thompson for the applicant
Mr P J Dunning SC, with him Ms J Rosengren, for the respondent

SOLICITORS:

Butts & Barkley for the applicant
Conroy & Associates for the respondent

1. The applicant and the respondent are related by marriage. The respondent and the applicant’s wife are sisters. The applicant is the registered proprietor of a house in the western suburbs of Brisbane. On 18 November 2004 the respondent lodged a caveat over the land, Lot 172 on SP 125046 in the County of Stanley, Parish of Oxley, title reference 50307247 claiming ‘an equitable interest as mortgagee of an estate in fee simple.’ By application dated 17 November 2006, two years after the caveat was lodged, the applicant seeks an order pursuant to s 127 of the Land Title Act that the caveat be removed. 

1. The parties are Vietnamese.  The respondent’s case is that she lent her sister, the applicant’s wife, two sums of money, $91,000 in about June 2002 and a further sum of $51,380 between January and September 2003.  The respondent alleges that the loan was secured by a charge, or mortgage, over the applicant’s land which is the matrimonial home of Mr and Mrs Dinh.  There is no writing which evidences the charge or mortgage and, obviously, no such interest in the land has been registered.

1. The applicant accepts that some monies were lent by the respondent to his wife but he asserts that they have been repaid in full. He denies that…