Maradiegue v Moneytech Finance Pty Ltd - [2024] QSC 160

SUPREME COURT OF QUEENSLAND

CITATION:

Maradiegue v Moneytech Finance Pty Ltd & Anor [2024] QSC 160

PARTIES:

HUMBERTO MARADIEGUE

(applicant)

v
MONEYTECH FINANCE PTY LTD
ACN 112 110 906

(first respondent)
and
KATHRYN JEAN BRIGHT

(second respondent)

FILE NO/S:

BS 5849 of 2024

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

30 July 2024

DELIVERED AT:

Brisbane

HEARING DATE:

6 June 2024

JUDGE:

Martin SJA

ORDER:

The parties are directed to confer and agree upon the terms of an appropriate amendment to this application so that all questions between the parties may be resolved.

CATCHWORDS:

REAL PROPERTY – TORRENS TITLE – CAVEATS AGAINST DEALINGS – REMOVAL – PARTICULAR CASES – where Between Dreams Pty Ltd (BD) and Tranquil Beginnings Pty Ltd (TB) are the registered owners of real property – where each of BD and TB owns the property as a trustee – where the respondent provided a third party with a finance facility in exchange for, among other things, a guarantee by BD and TB and others – where the applicant lent $500,000 to BD and TB – where security for the applicant’s loan included a second mortgage over the property – where the applicant’s solicitors sought to register the mortgage on the title of the property – where registration was refused because the respondent had lodged a caveat – where the applicant seeks an order removing the caveat – where the respondent cross-applies for orders joining BD and TB and declarations about the nature of the competing interests– whether there is a “serious question” to be tried – whether the balance of convenience supports the removal of the caveat

GUARANTEE AND INDEMNITY – CONTRACT OF GUARANTEE – CONSTRUCTION AND EFFECT – GENERALLY – where the respondent lodged a caveat over real property – where the interest claimed in the caveat is “[a]n equitable interest as chargee of an estate in fee simple” pursuant to a clause of a guarantee between the respondent (the caveator) and the registered owner – where the guarantee includes that the guarantor(s) “agrees that they charge (as beneficial owner(s)) all freehold and leasehold interest in land and all interests in all other property, including personal property (including any statutory right, benefit or concession) … including, but not limited to, the land and other property (if any)” – where the respondent argues that the interest in land charged is BD and TB’s beneficial interest arising from the right of indemnity they have as owners of the property as trustees – where the applicant argues that the guarantee has an express limitation: the guarantors only agree to charge as “beneficial owners” – whether the caveator has demonstrated that there is a “serious question” to be tried

Land Title Act 1994 (Qld), s 122, s 126

AECI Australia Pty Ltd v Convey [2020] QSC 207, cited
Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth (2019) 268 CLR 524, cited
Joyway Pty Ltd v Rochedale Holdings Pty Ltd [2022] QSC…

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: [2024] QSC 160
Decision Date: 30 July 2024

CaseChat Overview and Summary

Maradiegue, an applicant, sought the removal of a caveat lodged by Moneytech Finance, the respondent, against the registration of a second mortgage over real property. The property is jointly owned by Between Dreams and Tranquil Beginnings, each of which is a trustee for the true owners. Moneytech provided finance to a third party in exchange for a guarantee by the joint owners, among others, which included a charge over the property. Maradiegue lent money to the joint owners and sought to register a second mortgage over the property, but this was refused because of the caveat. The legal issues for the court to determine were whether there was a serious question to be tried about the nature of the interest charged by the caveat and whether the balance of convenience favoured the removal of the caveat.

The court considered the nature of the interest claimed in the caveat by Moneytech. The caveat stated that Moneytech claimed "an equitable interest as chargee of an estate in fee simple" pursuant to a clause in the guarantee agreement. This clause provided that the guarantors agreed to charge all freehold and leasehold interests in the land, including the property in question, as beneficial owners. The court had to determine whether the interest charged was the beneficial interest of the joint owners as trustees or whether the guarantee was limited to the beneficial owners' interest. The court found that the guarantee did not expressly limit the interest charged to the beneficial owners, and therefore, the caveator had demonstrated a serious question to be tried. The court also considered the balance of convenience and found that it favoured the removal of the caveat.

The court concluded that the caveator had demonstrated a serious question to be tried about the nature of the interest charged in the caveat, and the balance of convenience favoured the removal of the caveat. However, the court noted that the parties had not addressed the competing interests of the parties in their arguments, and it was necessary to resolve all questions between the parties. The court directed the parties to confer and agree upon the terms of an appropriate amendment to the application to ensure that all questions between the parties could be resolved.

The court did not make a final determination on the removal of the caveat but directed the parties to confer and agree on the terms of an appropriate amendment to the application. The court's decision highlights the importance of considering the competing interests of the parties and the need to ensure that all questions between the parties are resolved.

Orders

Orders of the court

The parties are directed to confer and agree upon the terms of an appropriate amendment to this application so that all questions between the parties may be resolved.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Maradiegue v Moneytech Finance Pty Ltd & Anor [2024] QSC 160
PARTIES:	HUMBERTO MARADIEGUE (applicant) v MONEYTECH FINANCE PTY LTD ACN 112 110 906 (first respondent) and KATHRYN JEAN BRIGHT (second respondent)
FILE NO/S:	BS 5849 of 2024
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	30 July 2024
DELIVERED AT:	Brisbane
HEARING DATE:	6 June 2024
JUDGE:	Martin SJA
ORDER:	The parties are directed to confer and agree upon the terms of an appropriate amendment to this application so that all questions between the parties may be resolved.
CATCHWORDS:	REAL PROPERTY – TORRENS TITLE – CAVEATS AGAINST DEALINGS – REMOVAL – PARTICULAR CASES – where Between Dreams Pty Ltd (BD) and Tranquil Beginnings Pty Ltd (TB) are the registered owners of real property – where each of BD and TB owns the property as a trustee – where the respondent provided a third party with a finance facility in exchange for, among other things, a guarantee by BD and TB and others – where the applicant lent $500,000 to BD and TB – where security for the applicant’s loan included a second mortgage over the property – where the applicant’s solicitors sought to register the mortgage on the title of the property – where registration was refused because the respondent had lodged a caveat – where the applicant seeks an order removing the caveat – where the respondent cross-applies for orders joining BD and TB and declarations about the nature of the competing interests– whether there is a “serious question” to be tried – whether the balance of convenience supports the removal of the caveat GUARANTEE AND INDEMNITY – CONTRACT OF GUARANTEE – CONSTRUCTION AND EFFECT – GENERALLY – where the respondent lodged a caveat over real property – where the interest claimed in the caveat is “[a]n equitable interest as chargee of an estate in fee simple” pursuant to a clause of a guarantee between the respondent (the caveator) and the registered owner – where the guarantee includes that the guarantor(s) “agrees that they charge (as beneficial owner(s)) all freehold and leasehold interest in land and all interests in all other property, including personal property (including any statutory right, benefit or concession) … including, but not limited to, the land and other property (if any)” – where the respondent argues that the interest in land charged is BD and TB’s beneficial interest arising from the right of indemnity they have as owners of the property as trustees – where the applicant argues that the guarantee has an express limitation: the guarantors only agree to charge as “beneficial owners” – whether the caveator has demonstrated that there is a “serious question” to be tried Land Title Act 1994 (Qld), s 122, s 126 AECI Australia Pty Ltd v Convey [2020] QSC 207, cited Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth (2019) 268 CLR 524, cited Joyway Pty Ltd v Rochedale Holdings Pty Ltd [2022] QSC…