Pacific Building Services Pty Ltd v Lau - [2017] ACTSC 245

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Pacific Building Services Pty Ltd & Anor v Lau & Ors
Citation:	[2017] ACTSC 245
Hearing Date(s):	23 August 2017
DecisionDate:	24 August 2017
Before:	McWilliam AsJ
Decision:	1. The applicants are to withdraw Caveat 2043640 forthwith. 2. The applicants are to pay the respondents’ costs of the proceedings.
Catchwords:	CAVEATS – Land Titles Act 1925 (ACT) s 107 – joint tenants – only one possibly grants equitable interest to creditor – creditor caveats whole of property – caveat impermissible
Legislation Cited:	Court Procedures Rules 2006 (ACT) r 706 Land Titles Act 1925 (ACT) s 107
Cases Cited:	Adrija Pty Ltd v Mohamed, Ahmed and Registrar General ACT Land Titles Office [2013] ACTSC 120 Andrews v Wilcox [2008] NSWSC 280 Boral v Aghili [2009] ACTCA 18 Depsun and Anor v Tahore Holdings Pty Ltd (1990) 5 BPR 11,314 GR8 Constructions Pty Ltd v O’Donnell [2011] ACTSC 92 John Lampard Pfeiffer v Colin James Cummins (unreported, ACT Supreme Court, Gallop J, 2 July 1986) Piroshenko v Grojsman & Others [2010] VSC 240; 27 VR 489
Parties:	Pacific Building Services Pty Ltd ACN 132 571 343 (First Applicant) Amrollah Aghili (Second Applicant) Henry Han Ho Lau (First Respondent) Shuk Han Lau (Second Respondent) Hanson Australasia Pty Ltd ACN 128 924 443 (Third Respondent)
Representation:	Counsel Mr Abbas (Applicants) Mr Johannessen (Respondents)
Solicitors High Ford Law Practice (Applicants) Johannessen Legal & Migration (Respondents)
File Number(s):	SC 147 of 2017

McWilliam AsJ:

By Originating Application filed 9 May 2017, the applicants, Pacific Building Services Pty Ltd ACN 132 571 343 (Pacific) and its director, Mr Amrollah Aghili seek the extension of a caveat lodged on 27 July 2016 and numbered 2043640 (Caveat).

The Caveat was lodged on the title of a property in O’Malley, in the Australian Capital Territory (Property), the registered proprietors of which are the first and second respondents to this application, Mr Henry Han Ho Lau and Mrs Shuk Han Lau. They are listed on the Certificate of Title as joint tenants.

The genesis for the application was the service on 28 April 2017 of a lapsing notice (dated 21 April 2017), pursuant to s 107(2)(a) of the Land Titles Act 1925 (ACT). Under s 107(2)(b) of that statute, the registrar-general shall, not less than 14 days from the date of service of the lapsing notice, remove the caveat from the register, ‘unless the court otherwise orders.’

The Caveat has been extended pending further order of the Court and the hearing of this application. As with Adrija Pty Ltd v Mohamed, Ahmed and Registrar General ACT Land Titles Office [2013] ACTSC 120 (Adrija), the relief sought is in terms more suited for an interlocutory order pending the determination of a substantive application. However, this was not an application where urgent orders were sought before the start of proceedings, such as to enliven Rule 706 of the Court Procedures Rules 2006 (ACT).

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: [2017] ACTSC 245
Decision Date: 24 August 2017

CaseChat Overview and Summary

Pacific Building Services Pty Ltd and Lau, who are joint tenants of a property, were involved in a dispute with a creditor of Lau, which sought to caveat the property under section 107 of the Land Titles Act 1925 (ACT). Lau had entered into a transaction with the creditor that gave rise to an equitable interest in the property. The creditor caveated the entire property, which Pacific Building Services challenged, arguing that the caveat was impermissible as Lau could only grant an equitable interest to the creditor and not the entire property. The case before the court was whether the caveat was valid and if the creditor could caveat the entire property.

The court had to determine if the caveat lodged by the creditor was valid and if it could caveat the entire property. The court considered whether the creditor could only caveat the equitable interest held by Lau or if it could caveat the entire property. The court also had to consider if the caveat was in accordance with the requirements of section 107 of the Land Titles Act 1925 (ACT).

The court found that the caveat was invalid as it was not limited to the equitable interest held by Lau, but rather caveated the entire property. The court held that under section 107 of the Land Titles Act 1925 (ACT), a creditor can only caveat the equitable interest held by the debtor, and not the entire property. The court found that the creditor’s caveat was not limited to the equitable interest held by Lau, and therefore, it was invalid. The court ordered that the applicants withdraw Caveat 2043640 forthwith and pay the respondents’ costs of the proceedings.

Orders

Orders of the court

1. The applicants are to withdraw Caveat 2043640 forthwith.

2. The applicants are to pay the respondents’ costs of the proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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