Premier Holdings v Langham & Anor

[2009] NSWSC 743

CITATION:	Premier Holdings v Langham & Anor [2009] NSWSC 743
HEARING DATE(S):	9 July 2009
JUDGMENT DATE :	9 July 2009
JURISDICTION:	Equity
JUDGMENT OF:	Slattery J at 1
DECISION:	Caveat extended to 5pm on Friday 31 July 2009
CATCHWORDS:	Extension of caveat - Original charge not available for registration - Registrar-General's discretion under s 36(1C) and s 39(1) of Real Property Act 1900 - No prior notice to Registrar-General of intention to seek order that Registrar-General register photocopy of charge over property. - Declaration made that photocopy of charge is an accurate copy of the original charge
LEGISLATION CITED:	Real Property Act 1900 Uniform Civil Procedure Rules 2005
CATEGORY:	Principal judgment
PARTIES:	Premier Holdings Corporation Pty Limited ACN 107 318 436 (Plaintiff) Howard Charles Langham (Defendant)
FILE NUMBER(S):	SC 2880/09
COUNSEL:	D A Lloyd (Plaintiff) No appearance for Defendant
SOLICITORS:	Colin Biggers & Paisley (Plaintiff) No appearance for Defendant

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY LIST

SLATTERY J

Thursday 9 July 2009

2880/09 Premier Holdings Corporation Pty Limted ACN 107 318 436 v Howard Charles Langham & Anne Terese Langham

JUDGMENT

1 HIS HONOUR: These proceedings came before me on Wednesday, 1 July 2009 in the Equity Duty List. They are proceedings in relation to the extension of a caveat in respect of the land in Folio Identifier 48/SP67643 (“the subject property”). The plaintiff in these proceedings, Premier Holdings Corporation Pty Limited is the assignee of the chargee of a charge over the subject property. The defendants are the registered proprietors of the subject property.

2 When the matter came before me on 1 July 2009 I was asked to make Short Minutes of Order (entitled CONSENT JUDGMENT/ORDER) which were filed in Court and which sought the making of the following declarations and orders:

“1. The Court declares that the photocopy of the charge which is annexed and marked "A" which is initialed and signed by the Court (Charge), is a true and accurate copy of the original of that document.

2. The Registrar General, Land and Property Information, Register the Charge on the title of folio identifier 48/SP67643 (Property).

3. No order as to costs.

4. The Court notes the agreements between the parties that:


(a) in consideration for the orders above and agreements below, the plaintiff will waive any claim for management profit (Management Profits) (as assignee from Australand Holdings Limited ACN 008 434 696 (Australand)) against the defendants pursuant to clause 9.1 of the Deed for Provision of Services (Services Deed), a copy of which is annexed and marked “B”.

(b) The defendants herein consent to the assignment of the Charge by Australand to the plaintiff.

(c) Subject to the agreement above in relation to Management Profit, the defendants acknowledge and agree they are bound by the Services Deed.

(d) Before selling or otherwise disposing of any interest in the property, the defendants must enter into, and agree to procure any purchaser of the Property to enter into, a Deed for Provision of Services in the form annexed and marked “C” with such changes as may be reasonably required by the plaintiff, including the insertion of the name and other details of the purchaser.”

3 I indicated on 1 July 2009 that I was prepared to make the declaration provided for in paragraph 1 of the Short Minutes of Order but that I would provide more detailed reasons for that when I was not conducting the Equity Duty List.

4 I also indicated then that I had doubts about whether order 2 in the Short Minutes of Order could be made, particularly in the absence of any prior notice to the Registrar General of the seeking of that order. Other uncontentious agreements are also noted in the proposed consent orders.

5 The short facts are the following. The evidence of the plaintiff discloses that caveat number AD890143F is registered on the title of the subject property, which is a unit in a retirement village, on behalf of the plaintiff Premier Holdings Corporation Pty Ltd.

6 The first schedule of the caveat claims an estate or interest in the subject property as "chargee of the land". Schedule 1 also describes that such estate or interest arises by virtue of a deed between Australand Holdings Limited and Premier Holdings Corp Pty Limited dated 31 May 2007. The facts stated to support the estate or interest are as follows:

“By the charge dated on or about 20 June 2003 the registered proprietors charged the property to Australand Holdings Limited by deed dated 31 May 2007. The charge was assigned to the caveator".

7 The occasion for this matter to be brought before the Duty List was the service on 28 April 2009 by the solicitors for the defendants, the registered proprietors, Messrs Mervyn J Cathers & Co, of a notice under section 74J of the Real Property Act 1900 of a proposed lapsing of the subject caveat. That notice to the caveator of the proposed lapsing of the caveat would have caused the caveat to expire on 20 May this year. By letter dated 19 May 2009 Messrs Colin Biggers & Paisley, the solicitors for the plaintiff, explained to Messrs Mervyn J Cathers & Co the basis of the charge which the plaintiff claimed, namely that the interest claimed is as the assignee of the chargee Australand Holdings Limited and that the charge is in respect of the obligations of the registered proprietors, to Australand Holdings Limited under a Deed for Provision of Services, a management services contract for the retirement village in which the unit is situated.

8 The matter was not able to be resolved immediately by consent. The summons which commenced these proceedings was filed on 20 May 2009. Time for service of it was abridged to 21 May 2009 by the Court.

9 The summons sought a declaration that the defendants’ interest in the property was subject to a charge in favour of the plaintiff and orders of the Registrar General register the charge on the title of the property and a declaration that the photocopy of the charge, which is annexed to the summons and marked A, was a true and accurate copy of the original of the charge. This last declaration is the one that the parties seek the Court to make in the Short Minutes of Order (CONSENT JUDGMENT/ORDER). It appears on the evidence which has been filed that the original charge made between the defendants and Australand Holdings Limited has been lost.

10 When the matter came before the Court on 20 May, the caveat was extended by consent to 10 June. It was extended again on 10 June until 1 July 2009 when it came before me in the Duty List. On that day the plaintiff handed up the consent orders which I have set out earlier in this judgment.

11 It is necessary now for me to consider two questions: first, is there a proper basis on the evidence to grant the final declaratory relief in the Short Minutes of Order; and second, should order 2 of those Short Minutes of Order be made. I indicated on 1 July that I was prepared to make the declarations sought in the short minutes of order. I said in my judgment on that occasion:

“[Mr Lloyd] took me to certain evidence to that effect which generally satisfies me that when the time comes the declaration of the kind sought is able to be made by the Court because there is material to justify it".

12 I will now make the declaration sought for the reasons in this judgment.

13 The affidavit of Rachelle Harrington sworn on 30 June 2009, attaches as annexure B the first page in photocopy of a form of unregistered charge under the Real Property Act. The charge is apparently signed on behalf of the defendants and is witnessed by their solicitor Mervyn J Cathers. It bears a stamp of the New South Wales Stamp Duties Office:

NEW SOUTH WALES DUTY
25-06-2003 0001463833-001
INITIAL
AMOUNT $ *********16,000.00
DUTY $ **************5.00

14 The stamp duty impress shows that duty of $5 was apparently paid on the original of the form of charge. That charge was made by the defendants as chargors and Australand Holdings Limited as chargee. The difficulty for the plaintiff is that the original of that charge now appears to be missing. Rachelle Harrington in paragraph 3 of her affidavit deposes to the fact that her client, Premier Holdings Corporation Pty Ltd, "has lost the original". She makes that statement when dealing with officers of the Stamp Duties Office in an endeavour to authenticate the photocopy form of charge in the plaintiff’s possession by obtaining some verification that the form of impressed stamp duty on the photocopy document corresponds exactly with the records of the Stamp Duties Office that relate to the lodgment for stamping of the original. Although there is no precise evidence before me as to how the original charge was lost or what searches were made for it the evidence is nevertheless sufficient for me to infer that it has been lost.

15 Miss Harrington’s enquiries did in fact reveal that what appears on the first page of the photocopy does correspond with a document that was taken to the Stamp Duties Office and was duly stamped on 25 June 2003. This is to be inferred from the material provided by the Office of State Revenue to Colin Biggers & Paisley on 17 June 2009 confirming Rachelle Harrington's summary of what she was told:

“ Charge by Howard and Anne Langham to Australand Holdings Limited

1. This stamp appears to be authentic and matches the computer records of the Office of State Revenue reviewed by you

2. Your records indicate that a cash payment of duty was paid on 25 June 2003 in the sum of $5.00 and the payment identifier number is 802742720.

3. The stamp duty transaction number is 1463833-001 which is the identifying number relating to the assessment of duty which has taken place.

4. In accordance with its usual practice, the Stamp Duties Office does not hold the original nor a copy of the Charge. Any original documents which are produced for stamping are returned to the party following the assessment and payment of the duty.”

16 There should be inferred from this material that there was in existence on 25 June 2003 an original charge executed on behalf of the defendants and Australand Holdings Limited, a copy of the first page of which is annexure B to the affidavit of Rachelle Harrington and the full text of which is annexed to the Short Minutes of Order handed up to the Court on 1 July 2009. This evidence establishes the identity fo the original charge made as between the defendants and Australand Holdings Limited. It does not as yet establish the assignment of that charge to the plaintiff, Premier Holdings Corporation Pty Limited but the plaintiff will need to establish that assignment when lodging the charge for registration.

17 There is some evidence of the assignment which is sufficient to show the plaintiff’s interest in the making of a declaration in the short minutes of order. In clause 4(b) of those short minutes the defendants consent to the assignment of the charge by Australand to the plaintiff, which is an indicator through the participation of the chargor and the assignee of the charge in those short minutes of order, that an assignment has occurred.

18 The declaration sought in the Short Minutes of Order goes to the narrow question of whether the photocopy of the charge annexed to the short minutes is a true and accurate copy of the original. The evidence is sufficient for that declaration to be made.

"The Court declares that the photocopy of the charge which is annexed and marked "A" which is initialled and signed by the Court is a true and accurate copy of the original of that document."

19 I have today initialled and dated Annexure "A" to the short minutes of order.

20 In relation to order 2 in the short minutes, I raised with Mr Lloyd on 1 July my concern about the making of such orders. He offered to provide a short submission to the Court justifying the making of those orders against the Registrar General. In that submission Mr Lloyd pointed out that the Court has power to make an order against a non party and that that order may be enforced under r 39.49 of the Uniform Civil Procedure Rules 2005. He next submitted that the Registrar General has a discretion to refuse to accept for lodgment any dealing that is not lodged in a manner approved by the Registrar General: s 36(1C) of the Real Property Act 1900. He further pointed out the Registrar General has a discretion to refuse to register any dealing which the Registrar General is satisfied should not be registered under s 39(1) of the Real Property Act 1900.

21 The submission made by Mr Lloyd on 1 July differed from the consent order which was sought in order 2 of the short minutes. Order 2 of the short minutes in effect required the Registrar General to register the charge. The submission now made by Mr Lloyd is that the Court:

“Should express an opinion that it would be appropriate for the Registrar General in the exercise of his discretion under section 36 (1) C and 39 (1) of the Real Property Act 1900 to accept for lodgment and registration the charge that is annexed to the consent orders made by the Court on 1 July 2009 and marked A".

22 It seems to me that there are difficulties in expressing the opinion in the form which the plaintiff requests. Nevertheless the findings I have made above in this judgment deal with the principal difficulty which confronts the plaintiff, namely that it does not have the original charge available for registration.

23 I would not have been prepared to make order 2 of the orders in the short minutes if that order had been pressed. The Registrar General has not been served with any notice of these proceedings. He has not had an opportunity to attend before the Court to offer any view as to whether order 2 would have been appropriate or not. There is no evidence before me that the form of charge which is annexed to the Short Minutes of Order in all respects otherwise complies with the requirements of the Registrar General as to form, to make it appropriate for acceptance by the Registrar General for lodgment and registration. In those circumstances it would be inappropriate for me to order the Registrar General to accept that document for lodgment and registration.

24 However, I can say that when the Registrar General is exercising his discretion under s 36(1C) and s 39(1) of the Real Property Act 1900, I see no reason why he should not treat the document, which is annexure A to the consent orders in these proceedings, as the best available evidence of the original charge made between the defendants and Australand Holdings Pty Limited and dated 20 June 2003, that the copy purports to be. This follows from the declaration that the Court has made. The Court is not of course by this statement directing the Registrar General as to how he should exercise his discretion under s 36(1C) or s 39(1) of the Real Property Act 1900.

25 I understand the plaintiff proposes shortly to lodge for registration the copy charge in the form of annexure A to the Short Minutes of Order of 1 July 2009. It is anticipated that that will still take a short period of time for lodgment and then ultimately for registration.

26 I am told by Ms MacMillan, who appears today on behalf of the plaintiff, that the defendants have consented to a further period of ten days for extension of the caveat. Notwithstanding the ten day limit on the defendant’s consent, I am prepared on the evidence before me to extend the caveat to 5 pm on Friday, 31 July 2009. I will bring the matter back for mention before me on Thursday, 30 July at 9.30am. By that date it is expected that these proceedings will be able finally to be dismissed once the charge has been registered.

27 I direct the plaintiff to serve a notice of the making of these orders today on the solicitors for the defendant by 5 pm tomorrow.

28 I make the declaration in paragraph 1 of the Short Minutes of Order and I note the agreements in paragraph 3 and 4.

29 I direct that these orders may be entered forthwith.

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