Four Oaks Enterprises Pty Ltd v Clark - [2002] TASSC 39

[2002] TASSC 39

CITATION: Four Oaks Enterprises Pty Ltd v Clark [2002] TASSC 39

PARTIES:  FOUR OAKS ENTERPRISES PTY LTD
  v
  CLARK, Keith

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  Original
FILE NO/S:  M144/2002
DELIVERED ON:  26 June 2002
DELIVERED AT:  Hobart
HEARING DATES:  20 June 2002
JUDGMENT OF:  Blow J

CATCHWORDS:

Conveyancing - Land titles under the Torrens System - Caveats against dealings - Lapse, removal and withdrawal - Removal - Balance of convenience test - Claimed profit à prendre.

Land Titles Act 1980 (Tas), s135.
Eng Mee Yong v Letchumanan [1980] AC 331; Re Burman's Caveat [1994] 1 Qd R 123; Porter v McDonald [1984] WAR 271; Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42; Perpetual Trustee Australia Ltd v Shand (1992) 27 NSWLR 426, referred to.
Aust Dig Conveyancing [189]

REPRESENTATION:

Counsel:
             Applicant:  T J Williams
             Respondent:  N R Readett
Solicitors:
             Applicant:  Ware & Partners
             Respondent:  Clerk Walker & Stops

Judgment Number: [2002] TASSC 39
Number of Paragraphs: 17

Serial No 39/2002
File No M144/2002

FOUR OAKS ENTERPRISES PTY LTD v KEITH CLARK

REASONS FOR JUDGMENT BLOW J

26 June 2002

The applicant is the registered proprietor of a property at Ellendale which is comprised in three certificates of title. The respondent has lodged a caveat prohibiting dealings in respect of the land in two of those certificates of title. The applicant applied for an order that the respondent show cause why his caveat should not be removed, and for an order that it be removed. The respondent, having been served with the application, appeared to show cause.

The respondent is the previous owner of the land. He sold it to the applicant pursuant to a contract dated 1 April 1999. Completion of that sale took place in late December 1999. A tractor was included in the sale. The directors of the applicant company were not happy with the condition of the tractor, but the contract contained no terms relating to its condition.

As a result of discussions between the respondent and two of the directors of the applicant company, he and they signed an agreement on 15 November 2001, in the following terms:

"15/11/01
Keith Clark and the proprietors of 4 Oaks Enterprises agree that
1)Keith Clark pay the sum of $500 for repairs to farm tractor.
2)Jeff Warr and Bob Waddilove agree to Keith Clark removing 6 saw mill logs from 4 Oaks property. [Illegible]
3)Also 2 dead trees are to be delivered to 4 Oaks and the other for Keith Clark."

The Land Titles Act 1980, s133(2)(c), requires a caveat to state "the estate or interest claimed by the caveator". The estate or interest claimed by the respondent is described in the caveat as follows:

"Claiming estate or interest in equity
by virtue of an agreement in writing between fouroaks enterprises pty ltd acn 081 676 093 as the registered proprietor of the land herin [sic] described and the caveator and dated 15th…

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] TASSC 39
Decision Date: 26 June 2002

CaseChat Overview and Summary

Four Oaks Enterprises Pty Ltd, the registered proprietor of a property at Ellendale, sought an order for the removal of a caveat lodged by Keith Clark, the previous owner of the land, prohibiting dealings in respect of two of the three certificates of title. Clark had lodged the caveat to protect an alleged interest in the land under an agreement made in November 2001, which permitted him to remove certain timber from the property. The primary legal issues were whether the caveat was defective and too wide, and whether, in exercising the discretion conferred by the Land Titles Act, the court should order its removal. The court found that the caveat was defective in failing to specify the sort of interest claimed and too wide in relation to the area of land that it affected. However, the court preferred not to order its removal on those grounds. The court considered the "balance of convenience" test, which requires the court to weigh the respective interests of the parties. The applicant had contracted to sell the property for $240,000, which was $40,000 more than it had paid Clark for the property in 1999. Clark's interest was potentially worth about $8,000 to $12,000 to him. The court found that the balance of convenience favoured the removal of the caveat due to the potential adverse consequences for the applicant and its directors if the contract for the sale of the property could not proceed to completion. The court ordered the removal of the caveat in respect of two of the three certificates of title.
The court ordered that Caveat No C380666 be removed in respect of certificates of title volume 205707, folio 1, and volume 203554, folio 1.

Orders