Kriklewicz v Kriklewicz

[2005] NSWSC 163

CITATION:	Kriklewicz v Kriklewicz [2005] NSWSC 163
HEARING DATE(S):	3 March 2005
JUDGMENT DATE :	3 March 2005
JURISDICTION:	Equity
JUDGMENT OF:	Campbell J
DECISION:	Defendant to pay plaintiff's costs

CATCHWORDS:	CONVEYANCING - LAND TITLES UNDER THE TORRENS SYSTEM - caveats against dealings - caveat lodged for registration but not yet registered - whether capable of providing a practical obstacle to completion of a sale of the land caveated - caveats against dealings - form of caveat - TORTS - TROVER AND DETINUE- what constitutes conversion - affixing chattel to realty - PROCEDURE - costs - costs application when relief originally claimed no longer needed because of defendant's action or concession
CASES CITED:	Courtenay v Austin [1962] NSWR 296 Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622
PARTIES:	Alice Ann Kriklewicz - Plaintiff Deitmar Kriklewicz as Guardian for Hildegard Kriklewicz - Defendant
FILE NUMBER(S):	SC 1742/05
COUNSEL:	L Ellison - Plaintiff F Assaf - Defendant
SOLICITORS:	L Rundle & Co - Plaintiff Gillis Delaney Brown - Defendant

LOWER COURT JURISDICTION:

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

CAMPBELL J

THURSDAY 3 MARCH 2005

1742/05 ALICE ANN KRIKLEWICZ v DEITMAR KRIKLEWICZ AS GUARDIAN FOR HILDEGARD KRIKLEWICZ

JUDGMENT – Ex Tempore (revised 7 March 2005)

1 HIS HONOUR: Mr Assaf has shown a lot of ingenuity in putting forward arguments as to why his client ought not be required to pay the costs of these proceedings. The proceedings are one which were begun only yesterday. In them the plaintiff sought an order that an unregistered dealing, namely a particular caveat, lapse forthwith. The plaintiff obtained leave to serve short notice, and service was effected yesterday around 11am. The caveat has now been withdrawn.

2 The caveat in question is one which is hopelessly defective. The box in schedule 1 of the caveat, where the caveator is to state the nature of the estate or interest in the land which the caveator claims, is left blank. The box in which the caveator is to state by virtue of what instrument any interest is claimed is left blank. The box in which the caveator is to state the facts by virtue of which an interest is claimed is filled in by saying “the land contains furniture owned by the caveator”. I can see no conceivable way in which those facts, considered by themselves, could give rise to a caveatable interest in the land.

3 Mr Assaf suggests, tentatively, that if the furniture had become a fixture that might be the caveatable interest. Quite apart from the fact that the caveat does not claim the furniture has become a fixture, the submission is not one I accept. If furniture has deliberately become affixed to realty, then that affixing amounts to a conversion of the furniture, and the previous owner of the furniture loses title to it.

4 The principle upon which the court will decide an application for costs when the principal proceedings have either settled or become redundant are those stated by McHugh J in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 624.

5 The defendant submits that the plaintiff was unreasonable in starting the proceedings when it did. One dimension of unreasonableness is said to have been that the plaintiff's solicitors could have been more forthcoming, in letting the defendant know that in fact the premises had been vacated, and there was no furniture in there.

6 Even if it were correct that the plaintiff's solicitor could have been more forthcoming in that respect, the fact that the defendant was under the mistaken apprehension that the land contained furniture which the defendant owned, in no way justified the serious step of placing upon the title a caveat which was defective in the ways I have outlined.

7 The caveat is one which was verified by a statutory declaration made 3 February 2005. It had been lodged for registration by 8 February 2005. On 8 February the Registrar General sent the solicitors for the caveator a requisition, which said:

“The Caveat does not disclose an interest in the subject land at Note (1).”

8 Nothing was done by the defendant to comply with that requisition, or to withdraw the caveat. While the caveat had not been registered by the Registrar General, elementary acquaintance with the procedures of the Land Titles Office would disclose that the existence of the caveat might still be ascertainable upon search, as an unregistered dealing: Butterworths Conveyancing Services (NSW) para [10806]; Courtenay v Austin [1962] NSWR 296 at 301. In its status as an unregistered dealing, it had every bit as much capacity to give notice of a claimed interest to someone acquiring an interest in the property as if it had been registered. It was, even though unregistered, as much a potential obstacle to a settlement proceedings as if it had been registered.

9 The solicitor for the plaintiff gave notice requiring removal of the caveat by letter sent on 22 February 2005. At that time, the land over which the caveat was placed was the subject of a contract for sale, and the plaintiff had received a notice to complete that contract, expiring on 25 February 2005. While the letter of 22 February 2005 required the removal of the caveat by 5pm that day, and that was a short time period, in the circumstances it was not an unreasonable one, given the complete lack of merit of the caveat, and earlier communications relating to its removal.

10 It appears to have been thought, so I gather from Mr Assaf’s submissions, by the solicitors for the defendant that the effect of the Registrar General's requisition was that the Registrar General would do nothing with the caveat until the requisition was satisfied, and that was as good as withdrawal. That is simply wrong – the premise of the argument is correct, but the conclusion does not follow from it.

11 The plaintiff was, in my view, quite justified in taking the action it did to commence the proceedings. I reject the submission that its action in doing so was unreasonable. Rather, the unreasonableness was on the side of the defendant, in not withdrawing the caveat which was clearly untenable. I order the defendant to pay the plaintiff’s costs.

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