Quarmby v Oakley
[2015] TASFC 11
•9 September 2015
[2015] TASFC 11
COURT: SUPREME COURT OF TASMANIA (FULL COURT)
CITATION: Quarmby v Oakley [2015] TASFC 11
PARTIES: QUARMBY, Alan
v
OAKLEY, Barrie Graeme
HARPER, Noel Geoffrey
FILE NO: 329/2014
DELIVERED ON: 9 September 2015
HEARING DATE: 24 August 2015
JUDGMENT OF: Porter, Estcourt and Pearce JJ
CATCHWORDS:
Procedure – Supreme Court procedure – Tasmania – Procedure under rules of court – Pleadings – Application to strike out statement of claim and dismiss action – Claim for damages for unnecessary and vexatious lodgement of caveats where caveats lodged in support of a judgment – Claim for reimbursement of overpayment of interest on costs – Action correctly dismissed as having no prospects of success.
Aust Dig Procedure [272]
Procedure – Judgments and orders – Interest on judgments – Interest on costs – Time from which interest runs – Act providing that interest to run from date of trial – Interest payable on whole amount stated in certificate of taxation from that date – Not arguable that payable from when amount ascertained on taxation.
Supreme Court Civil Procedure Act1932 (Tas), s 165.
Minister Administering the Environmental Planning & Assessment Act 1979 v Carson (1994) 35 NSWLR 342, applied.
Aust Dig Procedure [498]
Real Property – Torrens title – Caveats against dealings – Compensation for lodging caveat without reasonable cause – Claim for damages for unnecessary and vexatious lodgement brought in an action – Such action akin to an action for malicious prosecution – No basis where caveat lodged in support of judgment – Statutory claim for compensation should be brought by originating application.
Aust Dig Real Property [1317]
REPRESENTATION:
Counsel:
Appellant: In person
Respondent: D J Gunson SC
Solicitors:
Appellant: In person
Respondent: Gunson Williams
Judgment Number: [2015] TASFC 11
Number of paragraphs: 32
Serial No 11/2015
File No 329/2014
ALAN QUARMBY v BARRIE GRAEME OAKLEY
and NOEL GEOFFREY HARPER
REASONS FOR JUDGMENT FULL COURT
PORTER J
ESTCOURT J
PEARCE J
9 September 2015
Order of the Court
Appeal dismissed.
Serial No 11/2015
File No 329/2014
ALAN QUARMBY v BARRIE GRAEME OAKLEY
and NOEL GEOFFREY HARPER
REASONS FOR JUDGMENT FULL COURT
PORTER J
9 September 2015
I agree with the reasons for judgment of Estcourt J, and would also dismiss the appeal. As to both issues which the appellant seeks to pursue, there is no established or arguable view of the law which supports the claims as pleaded, or as may be pleaded. I want to add some comments about ground 6, and about another part of the appellant's argument as to the lodgement of caveats issue.
As to ground 6, I will repeat it for the sake of convenience:
"That the learned Judge erred in law in determining that Rule 95 of the Court Rules applied only to a whole proceeding and not to a specific separate issue therein."
Leaving aside the meaning of r 95 for a moment, the appellant faces a procedural difficulty with ground 6. The ground relates to the availability to the appellant of a remedy under s 138 of the Land Titles Act 1980, and I will need to set out some of the history of the action. Before doing so, I note the section's terms:
"138 Compensation for lodging caveat without sufficient cause
(1) A person who lodges a caveat under this Act with the Recorder without reasonable cause shall be liable to any person who may have sustained damage as a result of the caveat being lodged for such compensation as a judge, on a summons in chambers, deems just."
Rule 95(1) of the Supreme Court Rules 2000 provides as follows:
"95 Change of course of proceedings
(1) At any time, the Court or a judge may —
(a) order that —
(i)an action change to proceed as if it had begun by application; or
(ii)a proceeding begun by application change to proceed as an action; and
(b) direct the taking, amending or ignoring of any procedural step in the proceeding required by that change;"
The s 138 issue has its origins in comments made by the Associate Judge on 13 June 2014, when dealing with the respondents' application to strike out the then statement of claim. His Honour mentioned s 138 of the Land Titles Act when discussing what was intended by parts of the pleading. That statement of claim was struck out unless amended by order made on application filed within 21 days. A subsequent version was also struck out.
Later events gave rise to a grant of leave to the appellant to file a further statement of claim. He did so on 24 October 2014, and filed an interlocutory application on 27 October 2014 seeking an order under r 95 that the issues raised in par 28 of the further proposed statement of claim be heard as part of the action, or alternatively that the issues proceed as an application to be heard concurrently with the remainder of the action. Paragraph 28 of the new version of the statement of claim alleged that the placing of caveats on all 24 parcels of the appellant's land "was unnecessary and vexatious and subjected the plaintiff to nuisance and distress from the initial placing in September 2012 until the removal in May 2013".
Consideration of the proposed 24 October 2014 statement of claim and the interlocutory application came before the Associate Judge on 4 November 2014. There was discussion about the operation of r 95. The Associate Judge told the appellant in clear terms that:
· r 95 did not provide scope to split proceedings – it enabled them to be made one thing or the other, an action or an application;
· if the appellant wanted to split the issues, he should take the claims about the caveat out of the statement of claim and make them the subject of an originating application;
· any claim for compensation for wrongful lodgement of caveats should be made by originating application.
On 4 November 2014, the appellant's interlocutory application was dismissed. He was given yet another opportunity to file a further statement of claim. He filed that further statement of claim on 25 November 2014, and it was that pleading which was the subject of the orders made on 15 December 2014.
The notice of appeal relates only to the Associate Judge's orders on 15 December 2014. The determination complained of in ground 6 seems to be the one made on 4 November when the appellant's interlocutory application of 27 October was dismissed. The availability of the s 138 claim is mentioned in the Associate Judge's reasons of 15 December, but there is no determination about the scope of operation of r 95. His Honour referred to a possible s 138 claim as a reason for dismissing the action rather than entering judgment for the respondents.
In any event, the Associate Judge's interpretation of r 95 is correct. The appellant was told very clearly that a claim under s 138 of the Land Titles Act in relation to the lodging of caveats should be made by way of an originating application. As Estcourt J has said, it remains open to the appellant to make that application
That leads me to the next matter about the claim relating to the caveats. It seems to me that a prominent part of the appellant's argument is based on a misunderstanding of the Associate Judge's reasons. His Honour said that, "in considering whether a caveat had been wrongfully lodged or maintained, similar principles applied to those which were applicable to the tort of malicious prosecution." For this proposition, his Honour referred to BECA Developments Pty Ltd v Idameneo (No 92) (1999) 21 NSWLR 459 per Clarke JA at 471. Clarke JA first mentioned the point at 470, saying that the statutory cause of action was "not unlike a claim for malicious prosecution". At 471, his Honour said it was correct to give the phrase "without reasonable cause", the same meaning it had in the tort of malicious prosecution.
After referring to BECA Developments, the Associate Judge went on to say that in a common law action for malicious prosecution a caveat would be treated as an injunction in aid of court proceedings commenced or about to be commenced. He correctly observed that in this case, the caveats were not lodged in support of a malicious claim, but were lodged consequent upon the respondents holding a judgment against the appellant.
The appellant complains that the Associate Judge's reliance on BECA Developments was wrong because the New South Wales equivalent to s 138 is differently worded. In that case, the New South Wales section which was the subject of the argument was s 74P(1) of the Real Property Act 1900 (NSW). It is true that in that section, the words "wrongfully and", appear before "without reasonable cause". However, what Clarke JA was actually addressing in BECA Developments at 470–472, was the phrase "without reasonable cause" as it appeared in the predecessor to s 74P(1); s 98 of the Real Property Act 1900 (NSW). That section was in very similar terms to s 138(1) of the Tasmania section. He went on at 472–473 to discuss what the word "wrongfully" added to the operation of s 74P.
In any event, the effect of what the Associate Judge said, in the parts to which I have referred, was that in an action for damages, the pleaded claim about the lodgement of caveats could only amount to a cause of action for malicious prosecution. He correctly held that on the uncontentious facts, that claim, however pleaded, could not succeed. His Honour need not have considered the proper approach to a s138 claim, because such a claim was not before him.
File No 329/2014
ALAN QUARMBY v BARRIE GRAEME OAKLEY
and NOEL GEOFFREY HARPER
REASONS FOR JUDGMENT FULL COURT
ESTCOURT J
9 September 2015
The appeal
In this appeal the appellant Alan Quarmby complains that Holt AsJ erred in striking out the appellant's statement of claim in an action he brought against the respondents Barrie Graeme Oakley and Noel Geoffrey Harper and in dismissing that action.
The statement of claim
The appellant's statement of claim, which was the fourth iteration in the action, was pleaded in the following terms:
"STATEMENT OF CLAIM
1The Actions 155 of 2002 and 171 of 2002 were heard by HH Judge Evans, 7th-11th February 2011 and 15th and 16th February 2011.
2Following the judgement of these Actions on 3rd May 2011, costs were awarded against the Plaintiff.
3The Defendants submitted a Bill of Costs in the sum of $120,517.24, not including GST, for a total of 640 items.
4This Bill was taxed by Taxing Officer Mr Walker on 4th, 16th, 17th and 18th May 2012.
5The Plaintiff made an offer of $98,000 to the Defendants on 8th May by email.
6By letter dated 15th May, the Defendants rejected the offer of $98,000.
7Costs of the taxation were awarded to the Defendants in the sum of approximately $14,000 on 18th May 2012.
8A certificate for $136,008.54 was issued on 20th September 2012 jointly between the Defendants.
9This amount of the Certificate, $136,008.54, included both the final award of Costs from the original Bill - $117,866.53 including GST, the award of costs from the taxation and taxing fee, which together including GST amounted to $18,142.01.
10AOn or about 2 October 2012 the Defendants filed the following caveats ('the caveats') with the Lands Titles Office:
a)Caveat D68582 in favour of the First Defendant claiming an estate or interest as a Judgment Creditor of the Plaintiff by virtue of a certificate of Taxation issued by the Supreme Court of Tasmania on 20 September 2012 and amended on 28 September 2012 against the Plaintiff in the sum of $68,004.27 and a taxing fee of $2,000.00 and interest at the rate of 10.75% from 14 June 2011, expressing an absolute prohibition of dealings.
b)Caveat D68583 in favour of the Second Defendant claiming an estate or interest as a Judgment Creditor of the Plaintiff by virtue of a certificate of Taxation issued by the Supreme Court Tasmania on 20 September 2012 and amended on 28 September 2012 against the Plaintiff in the sum of $68,004.27 and a taxing fee of $2,000.00 and interest at the rate of 10.75% from 14 June 2011, expressing an absolute prohibition of dealings.
B
The Defendants lodged the caveats against the following Certificates of Title ('the properties') of which the Plaintiff is a registered proprietor.
a Volume 17705 Folio 1
b Volume 17704 Folio 3
c Volume 17704 Folio 4
d Volume 100086 Folio 1
e Volume 100086 Folio 2
f Volume 100086 Folio 3
g Volume 100087 Folio 4
h Volume 100088 Folio 1
i Volume 157656 Folio I
j Volume 162800 Folio 1
k Volume 201424 Folio 1
l Volume 201425 Folio 1
m Volume 201426 Folio 1
n Volume 201427 Folio 1
o Volume 201428 Folio 1
p Volume 212202 Folio 1
q Volume 226125 Folio 2
r Volume 242648 Folio 1
s Volume 242726 Folio
t Volume 242727 Folio 1
u Volume 242730 Folio 1
v Volume 242883 Folio 2
w Volume 242883 Folio 3
x Volume 250575 Folio 1
C
The total government valuation of the properties as at the time of lodging of the caveats, October 2012, was $995,000, more particularly valued as follows:
a Volume 201428 Folio 1 - Value $55,000
b Volume 157656 Folio 1 - Value $250,000
c Volumes (a) to (h) as above - Value $170,000
d Volumes (i) to (x) above except (o) - Value $510,000
D
The lodging of the caveats on all 24 titles was unnecessary, unreasonable, without sufficient cause, and an abuse of process.
Particulars
(i) The total value of the properties over which the caveats were lodged was far in excess of the total judgment debt;
(ii) The Plaintiff was unable to access monies against the properties, in particular the home block, to satisfy the judgment debt whilst the caveats were in place.
(iii) The delay in the removal of the caveats, and the consequent delay in satisfying the judgment debt, resulted in the accumulation of excessive interest being calculated on the judgment debt.
11One of these Caveats was placed on the Plaintiff's home block, which had been earlier mortgaged in anticipation of the need for funds in the matter, namely V157656/1.
12However, on learning of that particular Caveat, having been informed by the Recorder of Titles, the lenders, Westpac Bank, refused to release the funds.
13In September 2012 following the issue of the Certificate the Plaintiff had sought a Judicial Review of the Taxation effected by Mr Walker, 27th September 2012.
14At that time, October 2012, the total available funds in cash including the mortgage amount which had already been secured, were sufficient to pay out in full the amount of the Certificate.
15On 6th October 2012 the Plaintiff offered $60,000 in cash pending the outcome of the Judicial Review and/or the removal of the impeding Caveat.
16In November 2012 the Defendants had sought to enforce the Certificate by issuing a Fi Fa and were having it processed against the Plaintiff's land, 21st November 2012.
Particulars
a The Sheriff proceeded to enforce the Fi Fa against the Plaintiff's land without the Plaintiff's written consent, contrary to law, there being ample funds available to settle up in cash.
b The Defendants, by their refusal to remove the caveat on the mortgaged home block, V157656/1 above, had thus initiated an abuse of process, para 23 below.
17In November 2012 the Plaintiff requested the Defendants to remove the Caveat on the mortgaged property whilst keeping more than enough security for the Certificate amount on the other twenty three titles. They did not comply.
18On 1st May 2013 the Court, HH Judge Holt, ordered the removal of all Caveats except those on three parcels that the Plaintiff had selected and on the three parcels against which the Defendants were attempting to enforce the Fi Fa.
Particulars
a The three parcels which the Plaintiff selected and had had valued were V17705/1, valuation $50,000; V1628001/1, $120,000; and V201427/1, $75,000.
b The three parcels against which the Defendants were attempting to enforce the Fi Fa were V2427261/1; V242727/1; and V242730/1.
c These three parcels (b above) were not valued by the Sheriff until the seizure on 8th May 2012, and which valuations were then $360,000; $160,000 and $5,000 respectively.
19Following the Court Order for the removal, the funds being released by the Westpac Bank, the Certificate $136,000 was paid out to the Sheriff, 23rd May 2013.
20The Writ of Fi Fa had claimed interest on the total amount of the Certificate, $136,008.54, from the date of the Costs Order, 3rd May 2011: which sum included the Taxation costs which were not awarded until 18th May 2012: that is on $18,142.02.
21In determining a pay-out figure for the Fi Fa, the Sheriff had determined the interest payable on the sum of $136,008.54 up to the date of issue of the Certificate – 20th September 2012 – from the date of award, 3rd May 2011, and thereafter up to the date of payment of that sum, 23rd May 2013 at the appropriate rate of interest applicable under the Rules (Rule 5A).
22Also in determining the pay-out figure the Sheriff had determined the interest payable on the interest claimed in the Fi Fa, which accrual continued until discharge of the Fi Fa, 16th January 2014 by the Plaintiff's payment in cash, that is from 21st November 2012 to 16th January 2014.
23Following the removal of the Caveats, 1st May 2013, para 18 above, which allowed the available funds to be released and full payment of the Certificate to be made in cash, the Defendants caused the FiFa to be immediately enforced against the Plaintiff's land.
24Consequently, 6th May 2013, seizures were made of the Plaintiff's land, being a most considerable part thereof, and of value much greater and grossly disproportionate to the sum of the Certificate.
Particulars
a Seizures were made of the Plaintiff's land in the three parcels V2427261/1; V242727/1; and V242730/1.
b The valuations obtained by the Sheriff on these three parcels were $360,000, $160,000 and $5,000 as assessed by the valuer there and then present at the time of seizure.
A
As a result of the seizure, the Plaintiff suffered loss and damage.
Particulars
Land valuation fee
$1430.00
Poundage
100.00
Sheriff's travel expense
136.20
plus accrued interest to be calculated on the above amount.
25The placing of Caveats on all 24 parcels of the Plaintiff's land was unnecessary and vexatious and subjected the plaintiff to nuisance and distress from the initial placing in September 2012 until the removal in May 2013.
As a result of their act in placing caveats thus, the Defendants are liable to the Plaintiff for damages for nuisance and distress so caused.
26The refusal of the Defendants to remove most of the Caveats, in particular the Caveat on the mortgaged property, para 17 above, was unconscionable and caused the plaintiff considerable inconvenience and distress.
26AAs a result of their act, Item 26 above, the Defendants are liable to the Plaintiff for damages for the distress and inconvenience so caused and exemplary damages for unconscionable act of refusing to remove one particular caveat to allow cash settlement.
27The attempt by the Defendants to enforce the FiFa against the Plaintiff's land when they were well aware that there were settlement funds in cash available, para 23 above, was vexatious and unconscionable.
27AAs a result of the act of the Defendants, Item 27 above, the Defendants are liable to the Plaintiff for damages for the distress and vexation so caused and exemplary damages for the unconscionable act of attempting to seize and thus take away his property without right under the circumstances that their entitlements under the Certificate, Item 11 above, could be settled in cash.
28Following the payment of $136,000, 23rd May 2013, the Defendants pursued the payment of the interest they had claimed under the FiFa.
29The Writ of FiFa was enforced against the Plaintiff's machinery and livestock by a 'walk in' levy, 23rd September 2013, and renewed 7th December 2013.
30During the period following the payment of $136,000, 23rd May 2013, the settlement of the interest claimed remained in dispute.
Particulars
a The Plaintiff disputing that the Defendants were entitled to interest on the sum of $18,142.01, para 9 above, before the date of the taxation, 18th May 2012.
b The Plaintiff disputing that the Defendants were entitled to interest on the offered sum of $98,000, which they refused, after the date of the offer 8th May 2012.
c The Plaintiff disputing that the Defendants were entitled to interest on the sum of $60,000 which they refused, para 15 above, after the date of the offer 6th October 2012, and which had then been made by the Plaintiff to effect the removal of the caveat on the home block, V157656/1, to allow the cash settlement in full, see above.
31The Plaintiff paid sums into the Court under Section 8 and 9, Rule 258 of SCCP Act, being:
(a)$6,759.58, 21st October 2013;
(b)$25,740.77, 11th December 2013 pending judicial determination of the amount of interest due.
32By letter dated 22nd January 2014, the Sheriff advised immediate execution of the Writ as claimed and outstanding plus Sheriff's costs and accrued interest.
33This execution by Seizure of chattels and livestock was to be effected on Tuesday 28th January 2014.
34On receipt of the letter, Friday 24th January, the Plaintiff agreed by phone to a payment from the Suitor's Fund (para 31 above) of $23,057.54.
35Under the circumstances this payment was made under duress.
35AThe acts of the Defendant in enforcing the Writ of FiFa, as detailed paras 28 to 35, caused the Plaintiff inconvenience and distress for which the Defendants are liable to him.
36An Interlocutory Application listed for 12th February 2014 was on foot, at which the interest correctly payable to the Defendants in the matter was to be determined by this court.
37By pursuing the FiFa on 22nd January 2014, the Defendants had forced the payment to themselves of $32,059.66 out of the Suitors fund without any determination and judgment by this Honourable Court.
37AThe act of the Defendants in enforcing under duress payment to them out of the Suitors fund while the amount in question was pending judicial determination, Item 31 to Item 37, was unconscionable and rendered the Defendants liable to the Plaintiff for exemplary damages.
RELIEF SOUGHT
AND THE PLAINTIFF SEEKS:
1A Declaration that the Defendants are not entitled to Interest on the offered sum of $98,000 after the date of offer, namely 8th May 2012.
2A Declaration that the Defendants are not entitled to Interest on the taxation sum of $18,142.01 during the period from 4th June 2011 to 18th May 2012.
3A Declaration that the Defendants are not entitled to Interest on the sum of $60,000 from 6th October 2012 until 23rd May 2013.
4A Declaration that the Defendants were not entitled to Interest at all after their refusing to remove the caveat on V157656/1, 6th October 2012, so as to allow a full cash settlement of their Certificate.
5A Declaration that the Defendants are not entitled to Interest accruing on the FiFa from the date of issue, 21st November 2012, until 16th January 2014 in respect of the above sums.
AND THE PLAINTIFFS CLAIM AGAINST THE DEFENDANTS
1Damages and Exemplary damages for maintaining Caveats and unjustifiably refusing to remove them.
2Damages and Exemplary Damages for enforcing payment from the Suitor's Fund thus pre-empting judgment of the matter before this Honourable Court.
3Exemplary damages for wrongfully and unnecessarily enforcing a FiFa against the Plaintiff's land.
AND THE PLAINTIFF SEEKS:
1An Order that the Sheriff re-calculate the correct payout figure following A1, A2, A3, A4, A5 above and the sum $1666.22, para 33c above.
2A Judgment for the Plaintiff for the sum so determined."
The decision of the Associate Judge
The learned Associate Judge delivered oral reasons for judgment as follows:
"The plaintiff issued his writ in April 2014. In June the plaintiff's first statement of claim was struck out. In September the plaintiff was refused leave to deliver a proposed amended statement of claim. In October the plaintiff filed and served a further statement of claim. In November that statement of claim was struck out. The plaintiff has now filed and served his fourth version of the statement of claim. The defendants have applied for an order that the statement of claim be struck out and also for an order that judgment be entered for the defendants.
During the course of the hearing counsel for the defendants conceded that dismissal was, in the circumstances of this case, a more appropriate consequential order than judgment if the action was to be put at an end.
In the fourth version of the statement of claim the plaintiff's allegations are, in summary, as follows:
(a)In an earlier action costs were ordered against him certified by the taxing officer in the sum of $136,008.54.
(b)The defendants lodged caveats over 24 of the plaintiff's properties as judgment creditors.
(c)The total value of the properties over which the caveats were lodged was about $1,000,000.
(d)In the circumstances the lodgement of the caveats was unreasonable and an abuse of process.
(e)The caveats prevented the plaintiff from raising funds using his properties as security for the purpose of satisfying the judgment for costs.
(f)The defendants then caused to be issued a writ of execution to recover the costs awarded, being the judgment sum.
(g)One of the properties over which a caveat was lodged was the land upon which the plaintiff's house was constructed. The plaintiff had in place arrangements with his bank to draw down on a mortgage over his house to satisfy the judgment but the caveat over the house prevented the drawdown of that mortgage.
(h)The defendants refused the plaintiff's request to remove the caveat over his house.
(i)After some delay the caveats were removed from the plaintiff's house block and from all other titles except for six blocks of land having a total value of about $770,000.
(j)The plaintiff paid $136,000 for the costs, but the defendants pursued enforcement action to recover interest on the taxed costs.
(k) The plaintiff disputed liability to pay the interest.
(l)Chattels and livestock belonging to the plaintiff were seized by the sheriff to recover the interest claimed.
(m)The plaintiff was accordingly forced to pay the interest which he disputed he was liable to pay in order to prevent the sale of his chattels and livestock.
The plaintiff claims damages in respect of the maintenance of the caveats and the continuation of the enforcement proceedings.
In addition, the plaintiff seeks declaratory relief to the effect that some of the interest was not payable. Although not specifically stated I would infer that the plaintiff would also seek some form of consequential relief, if the declarations were to be granted, to the effect that the plaintiff would have judgment for the overpayment of interest and be in a position to recover it.
I commence with the claim in respect of the caveats.
A failure to withdraw a caveat may result in the adversely affected landowner recovering compensation. In considering whether a caveat has been wrongfully lodged or maintained similar principles apply to those which are applicable to the tort of malicious prosecution. For his proposition I refer to BECA Developments Pty Ltd v Idameneo (No 92) (1990) 21 NSWLR at p459 and in particular to the judgment of Clarke JA at p471.
In a common law action for malicious prosecution a caveat would be treated as an injunction in aid of court proceedings commenced or about to be commenced. The focus would remain on the claim the subject of the caveat. It follows that if a person maliciously and without reasonable cause claims to have an equity in land and the other elements of the tort are satisfied damages would be available in an action.
Here, however, the caveats were not lodged in support of a malicious claim. They were lodged consequent upon the defendants obtaining a judgment against the plaintiff. There can be no possibility, in this circumstance, that the caveats were lodged in support of an unmeritorious or malicious claim.
I conclude that the plaintiff has no claim actionable by writ in respect of the caveats. Howsoever framed, no statement of claim can overcome the difficulty. The statement of claim as far as it concerns a claim for damages for the unlawful maintenance of caveats must be struck out there being no prospect of the claim succeeding.
Judgment consequent upon an order striking out the statement of claim in respect of the caveats may cause an injustice in that it may preclude an application for compensation being brought under s138 of the Land Titles Act 1980, if there is a viable claim that the caveats, because of the large number of titles affected, were lodged without reasonable cause.
If the whole of the statement of claim is struck out and it is appropriate to put an end to the action the consequential order should be for dismissal rather than for judgment.
I now turn to the other allegations, underpinned by the premise that there was an overpayment of interest on the costs.
There are three bases upon which the plaintiff relies.
Firstly, the plaintiff alleges that he made an offer to settle the costs claim. It is alleged that the costs were taxed in May 2012 and during the course of the taxation, the plaintiff offered to settle the costs in the sum of $98,000. The alleged offer, however, was significantly below the costs awarded following taxation and the statement of claim discloses no basis for relieving the plaintiff in part or in whole of the obligation to pay interest on the costs because of the offer.
Secondly, it is alleged that following the taxation, but pending a review of the taxation, the plaintiff offered to pay $60,000 on account, which offer was rejected. There is no basis ascertainable from the statement of claim upon which an offer of a payment on account can deprive the judgment creditor of the statutory entitlement to interest to which I will refer later. There are no facts pleaded which might show that the defendants have been unjustly enriched. The sum of $60,000 remained with the plaintiff and there is nothing alleged to show that the defendants benefited by the retention of their right to recover interest on the whole of the costs awarded by the taxing officer.
Thirdly, the plaintiff alleges in his statement that the taxing officer awarded about $18,000 for the costs of the taxation and for the taxing fee. The plaintiff claims that interest was not payable on this amount from the date of the trial.
Section 165 of the Supreme Court Civil Procedure Act 1932 relevantly provides that every judgment or order carries interest from the time of the trial and that the interest is to be stated in the body of and levied under a writ of execution on such judgment. Section 164 makes it clear that costs orders are encompassed within the orders to which s165 applies.
Where costs are awarded the costs carry interest from the date of the trial, even though they are yet to be quantified. See Minister Administering the Environmental Planning and Assessment Act 1979 v Carson (1994) 35 NSWLR 342.
The costs of the taxation are encompassed in the Court's order for the payment of costs. The Rules of Court only confer a discretion as to the awarding of the costs of the taxation on the taxing officer in the event that the bill submitted is reduced by one-sixth or more. Section 165 is mandatory in its operation and its effect is well established as set out in Carson.
The plaintiff has not put forward any legal argument, even in skeletal form, which might be canvassed at trial contrary to the position that interest is payable on the whole of the amount stated in the certificate of taxation from the time of the trial.
I am positively persuaded that the statement of claim does not disclose any case for relief which will have a prospect of success at trial. In other words, I am satisfied that no reasonable cause of action is disclosed. The defects with the statement of claim exist as matters of substantive law rather than matters of drafting which might later be rectified. I am satisfied with certainty that the claim howsoever framed cannot succeed."
The notice of appeal
The appellant appeals on 11 grounds. They are, as amended during the course of the hearing of the appeal, as follows:
"GROUNDS
1That the learned Judge failed to require the defendants to make out their case for dismissal of the Statement of Claim.
2That the learned Judge failed to require the defendants to make out their case for dismissal of each specific issue raised in the Statement of Claim.
3That neither generally against the whole claim nor specifically against any separate issue therein was any case or any sufficient case made out for dismissal.
4That the learned Judge erred in law in striking out the Plaintiff's Writ, contrary to the Plaintiff's right to have the matters therein determined according to law.
5That the learned Judge erred in law in striking out the Plaintiff's Writ thus preventing such issues as were points of law therein being determined according to law.
6That the learned Judge erred in law in determining that Rule 95 of the Court Rules applied only to a whole proceeding and not to a specific separate issue therein.
7That the learned Judge erred in law in considering that the issue (unreasonable imposition of caveats) was a matter to be determined according to common law principles rather than the Statute under which it was raised.
8 That the learned Judge erred in law in not granting leave to proceed (Rule 370).
9That the learned Judge erred in law in finding that his belief that the claims were unlikely to succeed was sufficient reason to dismiss the Statement of Claim and strike out the Action.
10That the learned Judge erred in fact in finding that the Plaintiff had not been disadvantaged in the matters the subject of the Action.
11That the learned Judge erred in law in dismissing the Statement of Claim and striking out the Action, thus preventing the Plaintiff's case in those respects being heard."
Discussion of the grounds of appeal
In my view there is no merit in any of the grounds of appeal. Most of the grounds are no more than the complaints of a disappointed but legally uninformed litigant in person. This is an appeal by way of re-hearing. Error must be shown, either patent or latent. I apprehend no error on the part of the Associate Judge. Indeed I would respectfully endorse his Honour's reasons and adopt them as my own as disposing of the appellant's complaints as to the dismissal of his action, both as to his claim in respect of the respondents' entitlement to interest on their judgment against the appellant, from the date of that judgment, and as to the appellant's claims for damages, including for "maintaining caveats and unjustifiably refusing to remove them". In my view it is manifestly and unarguably clear that the appellant simply does not have a viable cause of action, which, on the facts he pleads, might be prosecuted by writ. Having said that I will nonetheless deal specifically with grounds 6 and 7 of the notice of appeal as those grounds assert what might be regarded as discrete errors of law.
Ground 6
Ground 6 of the notice of appeal, as amended during the course of the hearing of the appeal, contends that the Associate Judge erred in determining that the Supreme Court Rules 2000, r 95, applied only to a whole proceeding and not to a specific separate issue in the proceeding. In his claim for relief in his notice of appeal the appellant also asks that his claim pursuant to r 95 be granted.
Rule 95 of the Rules provides that the Court or a judge may order that an action change so as to proceed as if it had begun by an application.
As I apprehend it from the appeal book, no application was made by the appellant to convert his entire action into an application under s 138 of the Land Titles Act 1980. If his complaint is that he should have been permitted to convert some part of his action into such an application, then any refusal by the Associate Judge to permit that course would have been quite appropriate.
Rule 95 does indeed only apply to a "whole proceeding" and not to a specific separate issue in the proceeding. The rule has no application to the appellant's claims as he wishes to prosecute them.
Ground 7
Ground 7 of the notice of appeal contends that the learned Associate Judge erred in considering that the issue of the unreasonable imposition of caveats was "a matter to be determined according to common law principles rather than the statute under which it was raised".
The learned Associate Judge did not hold that the unreasonable imposition of caveats was "a matter to be determined according to common law principles rather than the statute under which it was raised". His Honour merely observed that judgment consequent upon an order striking out the statement of claim, as opposed to a dismissal of the appellant's action, may cause an injustice in that it may preclude an application for compensation being brought under s138 of the Land Titles Act, if there was a viable claim that the caveats, because of the large number of titles affected, were "lodged without reasonable cause". His Honour explored the possibility of the only conceivable common law action that might be open on the facts, namely that of malicious prosecution, but having concluded, correctly, that such a common law action could not lie, he did not suggest in any way that the appellant did not potentially have a claim under statute in respect of "the unreasonable imposition of caveats".
The Land Titles Act, s 138, provides as follows:
"Compensation for lodging caveat without sufficient cause
(1) A person who lodges a caveat under this Act with the Recorder without reasonable cause shall be liable to any person who may have sustained damage as a result of the caveat being lodged for such compensation as a judge, on a summons in chambers, deems just.
(2) The costs of a summons referred to in subsection (1) and all proceedings in connection with the summons shall be in the discretion of the judge, and execution may issue for the amount of compensation, if any, and of costs ordered by him to be paid in such and the like manner as if the amount had been awarded in a judgment in an action in the Supreme Court."
There is no common law cause of action for damages for the lodgement of a caveat without reasonable cause. The learned Associate Judge dealt, perhaps unnecessarily, with the only conceivable common law action available on the facts pleaded by the appellant in his statement of claim. The statement of claim insofar as it concerned a claim for damages for "maintaining caveats and unjustifiably refusing to remove them" was correctly struck out, there being no prospect of the claim succeeding.
I respectfully agree with the Associate Judge's assessment that the appellant has no claim actionable by writ in respect of the caveats. It remains open to the appellant however to apply to a judge on a summons in chambers for compensation under the Lands Titles Act, s 138(1), should he choose to do so. It is clear from s 138(2) that such an application by summons is not "an action in the Supreme Court". In any event the appellant's writ did not seek to raise a statutory claim under the section. The Associate Judge did not, in my view, err by failing to regard the pleading in par 10D of the statement of claim that "the lodging of the caveats on all 24 titles was unnecessary, unreasonable, without sufficient cause and an abuse of process" as constituting a valid application under s 138.
Disposition
As I have already stated, the appellant's grounds of appeal are wholly without merit. I would dismiss the appeal.
File No 329/2014
ALAN QUARMBY v BARRIE GRAEME OAKLEY
and NOEL GEOFFREY HARPER
REASONS FOR JUDGMENT FULL COURT
PEARCE J
9 September 2015
I agree with Estcourt J that the appeal should be dismissed. I entirely agree with his Honour's reasons but would add a brief comment of my own.
An action should be summarily dismissed only if the case is "very clear"; Dey v Victorian Railways Commissioners (1949) 78 CLR 62 per Dixon J at 91, General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 per Barwick CJ at 128-130 and Cubillo v Commonwealth (1999) 89 FCR 528 at 549-551. Caution must be exercised not to stifle the development of the law by the summary rejection of novel claims: Gunns Limited v Alishah (2009) 19 Tas R 38 at [23]. This is, however, a very clear case. It was not necessary for the Associate Judge to determine what, if any, facts may found a cause of action for damages arising from the lodgement of a caveat. The same applies to this appeal. The facts pleaded by the appellant disclosed no cause of action with any prospect of success. Even though this was already the fourth version of the statement of claim advanced by the appellant, no further amendment could have cured the deficiency. On the facts pleaded by the appellant the respondents had the right, as judgment creditors, to lodge a caveat over the titles of which the appellant was the registered proprietor. Before this Court, the appellant properly disclaimed any assertion that the respondents' conduct was malicious. The appellant's right to compensation, if he has one, is by application under the Land Titles Act 1980, s 138.
I also agree with the additional remarks of Porter J.
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