Express Loans & Finance Pty Ltd v Hunter - [2004] NSWSC 142

CITATION: EXPRESS LOANS AND FINANCE PTY LTD v HUNTER & ORS [2004] NSWSC 142

HEARING DATE(S): 03/03/2004

JUDGMENT DATE:
3 March 2004

JURISDICTION:
EQUITY

JUDGMENT OF: Bryson J at 1

DECISION: Leave to lodge caveat and immediate injunction are refused.

CATCHWORDS: TORRENS SYSTEM - contract authorised lodging caveat but did not expressly or by implication create interest in land - ex parte application for leave to lodge further caveat (after lapse of earlier caveat) refused.

LEGISLATION CITED: Real Property Act 1900 - s.74O(2)(a)

CASES CITED: Troncone v Aliperti (1994) 6BPR 13, 291, NSWConv.R 55-703
Murphy v Wright 5 BPR 11734, (1992) New South Wales Conveyancing Reports, 55 - 652

PARTIES :
Express Loans & Finance Pty Ltd - Plaintiff
Wendy Heather Hunter - First Defendant
Mark Cummins - Second Defendant
Registrar-General of New South Wales - Third Defendant

FILE NUMBER(S): SC 1758/2004

COUNSEL: M. Cashion SC - Plaintiff - ex parte

SOLICITORS: Deacons Lawyers - Plaintiff

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON J.

WEDNESDAY 3 MARCH 2004

1758/2004 EXPRESS LOANS AND FINANCE PTY LTD v HUNTER & ORS

JUDGMENT

1 HIS HONOUR: I have been asked, in an ex parte application which is the first step taken by the plaintiff in the proceedings, to make one or other of these orders: first, an order granting leave to the plaintiff pursuant to section 74O(2)(a) of the Real Property Act 1900 to lodge a caveat over land in register folio 1/SP67311, of which the first defendant is the registered proprietor; alternatively, to make an injunction restraining the Registrar General from registering any unregistered dealing relating to the land.

2 The plaintiff’s claim arises out of a document called Service Agreement and Irrevocable Authority dated 24 March 2003 between the plaintiff and the first defendant. The short effect was that the first defendant retained the plaintiff to assist her in obtaining a loan within terms specified in the document; the document set out material identifying the loan amount and a number of properties which were the security to be offered for the proposed loan. There are seven such properties and the property which I have mentioned is one of them.

3 The document is difficult to follow with respect to what it provides about what has to be done and what conditions have to be fulfilled and what has to happen before the plaintiff becomes entitled to payment of the fee for its endeavours. There appear to me to be internal inconsistencies between clauses 3 and 4 of the document, and overall it is not easy to follow in this respect.

4 However there is evidence prima facie that services were in fact performed and the plaintiff located a loan from an intending mortgagee; and did so several times and made the business opportunities available to the first defendant.

5 The claim to lodge a caveat turns on clause 10 which says, as far as I can read it:

“I/we authorise Express Loans and Finance to lodge…

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: [2004] NSWSC 142
Decision Date: 3 March 2004

CaseChat Overview and Summary

The case of Express Loans & Finance Pty Ltd v Hunter involved a dispute concerning the validity of a caveat lodged against the title of certain land. The plaintiff, Express Loans & Finance Pty Ltd, had previously lodged a caveat against the land under a contract that authorised the lodging of such a caveat. However, this contract did not create an interest in the land itself. Subsequently, the original caveat lapsed, and the plaintiff sought to lodge a further caveat. The defendant, Hunter, applied to the court for an order refusing the plaintiff leave to lodge the further caveat. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the contract that authorised the lodging of the initial caveat also created an interest in the land, which would permit the lodging of a subsequent caveat. The court had to determine the extent to which the contract could be construed to create an interest in the land, either expressly or by implication. Additionally, the court considered whether the contract authorised the plaintiff to lodge a further caveat after the initial one lapsed, and if such action would be permissible under the Torrens system.

The court held that the contract did not expressly or by implication create an interest in the land, and therefore the plaintiff did not have a proprietary interest that would permit the lodging of a further caveat. The court emphasised that under the Torrens system, a caveat can only be lodged by someone who has an interest in the land. Since the contract did not create such an interest, the plaintiff's attempt to lodge a further caveat was not authorised. Consequently, the court refused the plaintiff's application for leave to lodge the further caveat.

The court's decision was definitive, and no further orders were made. The plaintiff was not granted leave to lodge the further caveat, and the court upheld the defendant's position that the plaintiff's actions were not supported by the contract or the requirements of the Torrens system.

Orders