Liu v Su

[2024] QSC 304

SUPREME COURT OF QUEENSLAND

CITATION:

Liu v Su [2024] QSC 304

PARTIES:

YE LIU
(first applicant)
HUA ZHAO
(second applicant)
v
MIZHONG SU
(first respondent)
MING LIU

(second respondent)

FILE NO/S:

BS 12162 of 2023

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

4 December 2024

DELIVERED AT:

Brisbane

HEARING DATE:

Application on the papers

JUDGE:

Hindman J

ORDER:

The respondent pays the applicants’ costs of the proceeding on the standard basis.

SOLICITORS:

Stone Group Lawyers Pty Ltd for the applicant
Celtic Legal for the respondent

1. This is an application for costs by the applicants in a proceeding for the removal of a caveat, where after the proceeding was commenced the caveat lapsed as a consequence of the respondents not commencing a proceeding in support of the caveat within the time required after service of a lapsing notice sent pursuant to s. 126(2) of the Land Title Act 1994 (Qld).

2. The applicants seek costs on the indemnity or standard basis. 

3. The respondents contend that there should be no order as to costs as the caveat lapsed without the caveat removal application being required to be determined. 

4. I will order that the respondents pay the applicants’ costs of the proceeding on the standard basis. 

   Relevant Facts

5. The respondents lodged a caveat over property owned by the applicant on 20 September 2023.

6. The applicants issued a lapsing notice on 26 September 2023.  Proceedings were required to be commenced by the respondents within 14 days otherwise the caveat would lapse.

7. The same day the applicants’ solicitors wrote to the respondents’ solicitors demanding that the caveat be withdrawn by 4pm on 29 September 2023.  The demand was made in circumstances where an auction of the relevant property was scheduled to proceed on 30 September 2023.

8. This proceeding for the removal of the caveat was filed by the applicants on 27 September 2023.

9. The respondents’ solicitors confirmed in writing on 29 September 2023 that the caveat would not be removed. 

10. Correspondence between the parties ensued and ultimately on 10 October 2023 the respondents’ solicitors confirmed that proceedings would not be instituted to support the caveat as had been previously foreshadowed, and the caveat would be permitted to lapse.  That occurred. 

    Decision

11. In the circumstances of a pending auction of the relevant property there was nothing premature or improper about the applicants filing the application to remove the caveat either before the time limited by demand for removing the caveat had passed, or before the lapsing notice expired. 

12. A lapsing notice and an application to remove a caveat are simply two different (not mutually exclusive) paths by which an applicant might seek to deal with the issue of an unwanted caveat. 

13. Whilst the applicants have asserted that there was no proper grounds for the caveat to ever be lodged, and the respondents do not directly address that issue, I do not consider it important to resolve in any final way.  It is sufficient to note that the applicants have adduced evidence as to why they say the caveat was fatally flawed and ought never have been lodged, to which the respondents have not responded.     

14. What is important is that having lodged a caveat –

    (a)the respondents did not withdraw it when invited;

    (b)the respondents allowed the caveat to lapse;

    (c)the respondent have not sought to prove or even submit that the caveat was lodged or continued with reasonable cause. 

15. I am prepared to infer on the basis of the evidence placed before the court that the caveat was lodged and continued without reasonable cause. 

16. Section 130(1) of the Land Title Act 1994 (Qld) (although not referred to by either party) provides that a caveator under a caveat lodged or continued without reasonable cause must compensate anyone else who suffers loss or damage as a result.

17. In my view that section compels that the respondents pay the applicants’ costs of the proceeding. 

18. And even without reference to that section, I would conclude that although formal orders were not required in the proceeding because of the lapsing of the caveat, the applicants were in substance ‘successful’ and therefore ought have their costs of the proceeding.  The caveat removal application did not require a resolution only because the caveat has lapsed – not because of any apparent settlement between the parties.   

19. The costs should be on the standard basis.  There is not a sufficient basis available to conclude that the respondents acted in a way that justifies indemnity costs.