Field v Gaborit - [2002] QSC 466

[2011] QDC 174

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 2503 of 2011

ABC BRICK SALES PTY LTD

Plaintiff

and

GRO HOMES PTY LTD

and

GREGORY JOHN DOYLE

Defendants

BRISBANE

..DATE 08/08/2011

ORDER

CATCHWORDS

Land Title Act 1994 s 129(2)

Leave granted to lodge a second caveat on the same grounds as one withdrawn

HIS HONOUR: The court makes an order in terms of an initialled draft. It's made on an interlocutory application filed on the 27th of July 2011 in this claim which was filed a week before.

It grants leave to the plaintiff to "lodge a further caveat" over land of the second defendant described in the application "on the same grounds as caveat number 713615124 under section 129 of the Land Title Act 1994."

By section 129(2) "A further caveat with the same caveator can never be lodged in relation to an interest on the same or substantially the same grounds as ones stated in the original caveat unless the leave of a Court of competent jurisdiction to lodge the further caveat has been granted."

A first caveat was lodged on the 8th of December 2010 claiming an equitable charge in respect of the land. The second defendant's involvement is as guarantor of the obligations of the first defendant, which is now in liquidation, to secure payment of the cost of goods to be supplied by the plaintiff company.

The security arises under a guarantee which provides that "As security for payment to ABC Brick Sales of the guaranteed moneys and for its obligations generally under this guarantee the guarantor charges in favour of ABC Brick Sales the whole of the guarantor's undertaking, property and assets (including without limitation all of the guarantor's interests, both legal and beneficial and freehold and leasehold land) both current and later acquired.

The effectiveness of such a provision to charge unspecified real estate is established by Clark v Raymor (Brisbane) Pty Ltd [No 2] [1982] Queensland Reports 790. That first caveat was withdrawn on the 20th January 2011 out of consideration for Mr Doyle in what Ms Finlayson's affidavit suggests may have been a mistaken understanding (attributable to payments going to various recipients) that the whole of indebtedness payable by that time had been discharged.

Whether or not that was so, further supplies of goods were made in the following months and additional indebtedness which has not been discharged arose. The plaintiff lodged a new caveat which, perhaps necessarily, has the appearance of offending section 129, on the 19th July 2011.

A requisition has issued from the Land Titles Office on the following date calling for a response by the 17th August 2011. The requisition refers to section 129 and goes on "Either a Court copy of the leave to lodge the caveat or a satisfactory statement supporting the argument the caveat is not on the same, or substantially the same grounds, as caveat number 713615124 must be deposited. If either of the above is not deposited within 7 days…

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: [2002] QSC 466
Decision Date: 08/08/2011

CaseChat Overview and Summary

In the case of ABC Brick Sales Pty Ltd v. Gro Homes Pty Ltd and Gregory John Doyle, the plaintiff sought leave to lodge a second caveat over land owned by the second defendant, following the withdrawal of a previous caveat. The dispute involved an equitable charge over the land, which the plaintiff claimed as security for the payment of goods supplied by the plaintiff company. The second defendant, Doyle, was the guarantor of the obligations of the first defendant, Gro Homes Pty Ltd, which had gone into liquidation. The initial caveat was lodged to protect the plaintiff's security interest over the land, but it was later withdrawn due to a perceived understanding that the indebtedness had been discharged. However, subsequent supplies of goods resulted in additional indebtedness, prompting the plaintiff to lodge a new caveat.

The legal issue before the court was whether the plaintiff could be granted leave to lodge a second caveat under section 129(2) of the Land Title Act 1994, which prohibits a further caveat with the same caveator from being lodged on the same or substantially the same grounds as the original caveat without the leave of the court. The court needed to determine if the new caveat constituted a different or substantially different ground from the withdrawn caveat, and if so, whether granting leave would be appropriate.

The court found that the plaintiff's case for leave was compelling and not vexatious, as there was genuine indebtedness underlying the claim. The court referenced the precedent in Field v. Gaborit, where leave was granted for a fourth caveat, and considered the preferable course to be granting leave for a fresh caveat on the same grounds as the first one. The court also noted the importance of avoiding retrospective orders that could risk the plaintiff's interest. The court granted the plaintiff leave to lodge the second caveat on the same grounds as the first one, and ordered the second defendant to pay the plaintiff's costs on an indemnity basis as stipulated in the guarantee agreement.

The court's decision was based on the clear jurisdiction conferred by section 68 of the District Court of Queensland Act 1967, which includes jurisdiction over claims for money and declaratory relief. The court also took into account the terms of the guarantee, which obligated the second defendant to pay all costs on an indemnity basis. The court ordered costs to be awarded to the plaintiff on an indemnity basis, considering the circumstances and the terms of the guarantee.

Orders