Gippsreal Limited v Garner Transport & Haulage Pty Ltd

[2006] NSWSC 1229

CITATION:	Gippsreal Limited v Garner Transport & Haulage Pty Ltd [2006] NSWSC 1229 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	26 October 2006
JURISDICTION:	Equity Division Duty List
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	10/26/2006
DECISION:	Motion for order extending caveat dismissed with costs.
CATCHWORDS:	REAL PROPERTY - Torrens title - Caveats against dealings - application to extend operation of caveat - whether caveatable interest - interest claimed pursuant to oblgiation in mortgage - mortgage had already been discharged - held, no seriously arguable case.
PARTIES:	Gippsreal Limited (plaintiff) Garner Transport & Haulage Pty Limited (defendant)
FILE NUMBER(S):	SC 1393/06
COUNSEL:	B Neild (plaintiff) D Priestley (defendant)
SOLICITORS:	Leonard Legal (plaintiff) Browne & Co (defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY LIST

BRERETON J

Thursday 26 October 2006

1393/06 Gippsreal Limited v Garner Transport & Haulage Pty Limited

JUDGMENT (ex tempore)

1 HIS HONOUR: These proceedings were instituted on 13 February 2006 when the plaintiff, Gippsreal Limited, sought an order extending the operation of caveat AB 516552 until further order of the Court, a lapsing notice in respect of that caveat having been served by the defendant, Garner Transport & Haulage Pty Limited. An order was made extending the operation of the caveat by consent for a limited time, and that order was continued from time to time until 15 May 2006 when, by consent, Hamilton J, upon the plaintiff's usual undertaking as to damages, made orders extending the operation of the caveat until further order, and reserved costs. Both parties were represented. No order was made adjourning the proceedings to any future date.

2 It having come to the attention of the Registrar that the proceedings had not been adjourned to a further date, the matter was listed administratively on 10 July 2006. It is not clear from the file that any notice of the listing on that date was sent to the parties. There was no appearance by either party when the matter was listed on 10 July and the Court sent a r 13.6 Notice to the solicitors for each party, informing them that the proceedings were adjourned for directions on 27 July at 9.30am and that if there was no appearance by or on behalf of the plaintiff on that date, the Court may dismiss the proceedings.

3 On 27 July, there was no appearance by either party, and the matter was dismissed pursuant to r 13.6. Neither party was aware of this.

4 In September and October there was a flurry of correspondence from the defendant’s solicitors to the plaintiff’s solicitors seeking to have the matter progressed, to which the plaintiff did not, for some considerable time, respond. Recently, when the defendant endeavoured to have the matter relisted, it discovered that the matter had been dismissed under r 13.6.

5 By Notice of Motion filed on 25 October and returnable today, the plaintiff seeks an order setting aside the dismissal of the proceedings and further extending the operation of the caveat, which the Registrar General has agreed not to allow to lapse until tomorrow.

6 The circumstances in which the matter came to be dismissed, and in particular that on both 10 July and 27 July both parties were unrepresented, strongly suggest that there was a misunderstanding, misapprehension or oversight in connection with those listings of the matter. That is also suggested by the fact that the orders of 15 May 2006 did not provide for an adjournment to any date. Despite the delinquency of the plaintiff in responding to the defendant's correspondence during September and October, were I satisfied that there was a seriously arguable claim for a caveatable interest, I would not hesitate to set aside the dismissal of the proceedings and reinstate them.

7 However, it is on the question of a seriously arguable case that, in my opinion, the plaintiff fails.

8 The plaintiff claims an interest as mortgagee pursuant to a mortgage dated 10 October 2002. There is no doubt that there was such a mortgage. However, on 12 November 2004, the plaintiff executed a discharge of that mortgage and that discharge was subsequently registered. In those circumstances, I am quite unable to see how the plaintiff could claim to have a caveatable interest as mortgagee under a mortgage which it has discharged.

9 This is not a case in which a security interest has been brought into existence by a contract, such as a building contract, which interest after its creation survives notwithstanding that the contract is terminated: in such a case the interest is distinct from, though created by, the contract. To the contrary, this is a case in which a mortgage was given securing certain obligations, and later discharged. The discharge releases the land from those obligations. It ends the security interest. The land is simply no longer security for those obligations, and although it is possible that those obligations may survive as personal obligations, notwithstanding discharge of the mortgage, the discharge means that they are no longer secured on the land.

10 I do not think that the plaintiff has a seriously arguable case for a caveatable interest, and for that reason I decline to reinstate the proceedings for the purpose of further extending the caveat.

11 I order the Notice of Motion be dismissed with costs.

12 I order that the plaintiff pay the defendant's costs of the proceedings.

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17/11/2006 - Change of Date - Paragraph(s) Date