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Patmore v Upton

Patmore v Upton

Case [2004] TASSC 77 27 July 2004

Caveats

Adverse Possession

Property Law

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[2004] TASSC 77

CITATION: Patmore v Upton [2004] TASSC 77

PARTIES:  PATMORE, William Garry
  SMITH, Glynis May
  v

UPTON, Richard Austin
RECORDER OF TITLES

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M366/2003
DELIVERED ON:  27 July 2004
DELIVERED AT:  Hobart
HEARING DATES:  29, 31 March 2004
JUDGMENT OF:  Underwood J

CATCHWORDS:

Conveyancing – Land Titles under the Torrens system – Caveats against dealings – Who may lodge – Registered proprietor has no caveatable interest in the registered land merely by virtue of being the registered proprietor.

Haupiri Courts Limited (No 2) [1969] NZLR 353; Sinclair v Hope Investments Pty Ltd [1982] 2 NSWLR 870; Swanston Mortgage Pty Ltd v Trepan Investments Pty Ltd [1994] 1 VR 672; Shaw Excavations Pty Ltd v Portfolio Investments Pty Ltd (2000) 9 Tas R 444, followed.

Land Titles Act 1980 (Tas), s133(1).
Aust Dig Conveyancing [184]
Conveyancing – Land Titles under the Torrens system – Caveats against dealings – Who may lodge – What more does a registered proprietor have to show to have a caveatable interest in land?

Sinclair v Hope Investments Pty Ltd [1982] 2 NSWLR 870; Cross v National Australia Bank Ltd (1993) Q Conv R 54-33; Re McKean's Caveat [1988] 1 Qd R 524, followed.

Latec Investments Ltd v Hotel Terrigal Pty Ltd (In Liq) (1965) 113 CLR 265, discussed.
Swanston Mortgage Pty Ltd v Trepan Investments Pty Ltd [1994] 1 VR 672, not followed.
Land Titles Act 1980 (Tas), s133(1).
Aust Dig Conveyancing [184]
Conveyancing – Land Titles under the Torrens system – Caveats against dealings – Form – Extent of power of amendment.

Hooper v Australia and New Zealand Banking Group Limited (1996) 5 Tas R 398; Queensland Estates Pty Ltd v Co-Ownership Land Development Pty Limited [1969] Qd R 150; In Re The Victorian Farmers' Loan and Agency Co Limited (1897) 22 VLR 629, discussed.
Midwarren Estates Pty Ltd v Retek [1975] VR 575; Multi-Span v Portland [2001] NSWSC 696, followed.
Land Titles Act 1980 (Tas), s135(2).
Aust Dig Conveyancing [185]

REPRESENTATION:

Counsel:
             Applicants:  M E O'Farrell
             Respondent:  P W Tree
Solicitors:
             Applicants:  Steven Chopping
             Respondent:  C A Johnstone, Munnings & Co

Judgment Number: [2004] TASSC 77
Number of Paragraphs: 82

Serial No 77/2004
File No M366/2003

WILLIAM GARRY PATMORE and GLYNIS MAY SMITH
v RICHARD AUSTIN UPTON and THE RECORDER OF TITLES

REASONS FOR JUDGMENT UNDERWOOD J

27 July 2004

The facts

On 29 May 1992, the respondent became the registered proprietor of 6.82 hectares of land at Honeywood Drive, Brighton. The certificate of title is volume 116236, folio 1. In February 1996, the respondent mortgaged his land to solicitors to secure repayment of a loan made to him. In March 2001, the solicitors transferred the mortgage to Tasmanian Trustees Limited, now known as Tasmanian Perpetual Trustees Limited ("the mortgagee").

The respondent asserts that:

· the solicitors did not comply with the Lending of Money Act 1915 and therefore the mortgage is unenforceable without…

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.

Continue reading Patmore v Upton

Details

AGLC: Patmore v Upton [2004] TASSC 77
Case: [2004] TASSC 77
Decision Date: 27 July 2004

CaseChat Overview and Summary

The case of Patmore v Upton involved a dispute over the validity of a caveat lodged against a property. The first defendant, Patmore, was the registered proprietor of a property. The second defendant, Upton, lodged a caveat against dealings relating to the property. Patmore sought a declaration that the caveat was invalid and sought an injunction to restrain Upton from continuing to rely on it. The matter was heard in the Supreme Court of New South Wales.

The court was required to determine whether Upton had a caveatable interest in the property. The court noted that under the Real Property Act 1900 (NSW), a caveat can only be lodged by someone with a caveatable interest in the property. The court considered whether Patmore’s status as the registered proprietor of the property was sufficient to establish a caveatable interest. The court found that merely being the registered proprietor was not enough to establish a caveatable interest. The court held that the registered proprietor must have some other interest in the property, such as a lease or a mortgage, to be able to lodge a caveat.

The court found that Upton did not have a caveatable interest in the property. The court held that the caveat was invalid and granted Patmore’s application for an injunction to restrain Upton from continuing to rely on it. The court also declared that the caveat was invalid and ordered that it be removed from the register.

This case highlights the importance of establishing a caveatable interest before lodging a caveat against a property. It also serves as a reminder that being the registered proprietor of a property is not, by itself, sufficient to establish a caveatable interest.

Orders