Marriott v Ulysses Qld Pty Ltd

[2010] QCAT 613

CITATION:		Marriott & anor v Ulysses Qld Pty Ltd [2010] QCAT 613
PARTIES:	Marriott & Ross-Soden
v
Ulysses Qld Pty Ltd

APPLICATION NUMBER:   BDL242-10  

MATTER TYPE: Building matters

HEARING DATE:     Decision on the papers

HEARD AT:  Brisbane

DECISION OF: Peta Stilgoe

DELIVERED ON: 1 December 2010

DELIVERED AT:      Brisbane

ORDERS MADE: The application is dismissed.

CATCHWORDS :  JURISDICTION – where application for issue of a caveat – whether a caveatable interest – whether tribunal can “issue” a caveat

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the

Queensland Civil and Administrative Tribunal Act 2009

REASONS FOR DECISION

1. The applicants carried out plastering work on a residential unit project in Airlie Beach for Ulysses Qld Pty Ltd. The work was completed in December 2008 but the applicants are yet to receive payment for the last three invoices, totalling $48,215.20. They have asked the tribunal to issue a caveat over the units to secure the outstanding payment.

2. Caveats are governed by the Land Title Act 1994. Section 122 lists the people who may lodge a caveat:

a)a person claiming an interest in a lot;

b)the registrar;

c)the registered owner of the lot;

d)a person to whom an Australian court has ordered that an interest in a lot be transferred;

e)a person who has the benefit of a subsisting order of an Australian court in restraining a registered proprietor from dealing with a lot.

1. The right to lodge a caveat either exists or it does not. A court or tribunal may declare whether or not a person has a caveatable interest, but it cannot “issue” a caveat.

2. t has been long established that an unsecured creditor does not obtain an interest in land without some other elements being present which create an equitable interest. The appellants have not provided the tribunal with any material to suggest that they do have an equitable interest in the land: there is no description of the land; there is no detail of ownership of the land; and the applicants have not suggested that their trade terms create any sort of equitable interest.

3. The tribunal is not a Court. Its ability to give relief to parties is proscribed by the Queensland Civil and Administrative Tribunal Act. Even if the applicants could show a caveatable interest, the order that the applicants seek is not within the tribunal’s power.

4. The application should be dismissed.