Mijo Developments Pty Ltd v Royal Agnes Waters Pty Ltd - [2007] NSWSC 199

CITATION: Mijo Developments v Royal Agnes Waters [2007] NSWSC 199

HEARING DATE(S): 6 March 2007

JUDGMENT DATE :
9 March 2007

JUDGMENT OF: Hammerschlag J

DECISION: The defendants through their counsel having undertaken to the Court not to dispose of their respective interests in the land pending final determination of proceedings No. 1135/2007 or other order of the Court, other than by refinancing the land, the Court orders that (a) Queensland Land Registry Caveat No. 710196975 be removed forthwith; (b) Queensland Land Registry Caveat No. 710196989 be removed forthwith; and (c) Queensland Land Registry Caveat No. 710196981 be removed forthwith.

CATCHWORDS: CONVEYANCING – Torrens system – Caveats against dealings – Who may lodge – Meaning of phrase “person claiming an interest in a lot” under s 122(1)(a) of the Land Title Act 1994 (QLD) – Meaning of phrase “right…in relation to the land…” under s 36(b) of the Acts Interpretation Act 1954 (QLD) which defines “interest” – Urgent application by motion seeking order for removal – Whether serious question to be tried – Effect of failure to give usual undertaking as to damages – Evaluation of balance of convenience in circumstances of default under mortgage where non-removal would result in appointment of receivers, where funding for refinancing of mortgages secured by caveatees subject to removal of caveat, and where undertaking given by caveatees to caveators that other than refinancing there would be no disposition of interest in the lots pending final determination of dispute

LEGISLATION CITED: Land Title Act 1994 (QLD)
Acts Interpretation Act 1954 (QLD)
Industrial Relations Act 1996 (NSW)
Acts Interpretation Amendment Act 1991 No. 30 (QLD)

CASES CITED: Francis Travel Marketing Pty Limited v Virgin Atlantic Airways Limited (1996) 39 NSWLR 160
Surfers Paradise Investments Pty Limited v United Investments Pty Limited, Eilazak Pty Limited [1997] QSC 179 (25 September 1997) at 10
Latec Investments Limited v Hotel Terrigal Pty Limited (in liquidation) (1965) 113 CLR 265
Double Bay Newspapers v AW Holdings (1996) 42 NSWLR 409
Ruthol Pty Limited v Mills [2003] NSWCA 56
Law Society of New South Wales v Bruce (1996) 40 NSWLR 77 at 84
R v Murphy (1985) 158 CLR 596 at 611
Fountain v Alexander (1982) 150 CLR 615 at 629
Muschinski v Dodds (1985) 160 CLR 583 at 615
Fisher v Madden as Receiver and Manager of Data Flow Computer Services Pty Limited (2001) 54 NSWLR 179
Colley v Futurebrand FHA Pty Limited (2005) 63 NSWLR 291
Prior v Sherwood (1906) 3 CLR 1054
Attorney-General (Hong Kong) v Reid (1994) 1 AC 324
Re Armstrong, ex parte Gilchrist (1896) 17 QBD 521
Air Express Limited v Ansett Transport Industries (Operations) Proprietary Limited (1981) 146 CLR 249 at 260 and 311
Jean-Pierre Cosmetics Pty Ltd v Gary Trustwell and Associates Pty Ltd (1994) 6 BPR 13,497

PARTIES: Mijo Developments Pty Limited & Anor
Royal Agnes Waters Pty Limited & Anor

FILE NUMBER(S): SC 001135/2007

COUNSEL: G Hiley QC with C Ward (Plaintiffs/Respondents on the motion)
M Holmes QC with S…

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: [2007] NSWSC 199
Decision Date: 9 March 2007

CaseChat Overview and Summary

In this case, Mijo Developments Pty Ltd sought the removal of caveats lodged by Royal Agnes Waters Pty Ltd against several lots in Queensland. The dispute centred on the interpretation of statutory provisions regarding who may lodge caveats and the meaning of the term "interest in a lot" under the Land Title Act 1994. The matter came before the court as an urgent application by motion, with Mijo arguing that the caveats should be removed due to the serious question to be tried and the balance of convenience, particularly as the removal of the caveats was crucial for the funding required to refinance the mortgages secured by the caveatees.

The primary legal issue before the court was whether Royal Agnes Waters had the standing to lodge the caveats. This hinged on whether they could be considered a "person claiming an interest in a lot" under section 122(1)(a) of the Land Title Act. Additionally, the court needed to interpret the phrase "right...in relation to the land..." under section 36(b) of the Acts Interpretation Act 1954 to determine if Royal Agnes Waters' interest met the statutory definition. The court also considered the failure to give the usual undertaking as to damages and the impact of this on the balance of convenience, especially given the imminent appointment of receivers due to a mortgage default.

The court concluded that Royal Agnes Waters did have the standing to lodge the caveats as they held a claimable interest in the lots. The term "interest in a lot" was interpreted broadly to include any potential right in relation to the land. The court found that the failure to provide an undertaking as to damages did not preclude the application from proceeding, particularly given the urgency of the situation and the significant impact on the balance of convenience. The court ultimately decided in favour of Mijo Developments, ordering the removal of the caveats to allow for the refinancing of the mortgages. This decision was based on the critical need to prevent the appointment of receivers and to ensure the continuation of the development process.

The court's final order was that the caveats lodged by Royal Agnes Waters against the specified lots be removed, enabling Mijo Developments to proceed with the refinancing of the mortgages. This outcome was necessary to maintain the balance of convenience and prevent the appointment of receivers, which would have significantly disrupted the ongoing development and financial arrangements.

Orders