Rockett v Evans - [2008] QSC 227

SUPREME COURT OF QUEENSLAND

CITATION:

Rockett v Evans [2008] QSC 227

PARTIES:

LYNETTE JOY ROCKETT
(plaintiff)
v
TRACY MICHELLE EVANS
(first defendant)
BORRUGURRA PTY LTD (ACN 107 081 569)
(second defendant)

FILE NO/S:

4389/08

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

3 October 2008

DELIVERED AT:

Brisbane

HEARING DATE:

17 July 2008

JUDGE:

Martin J

ORDER:

That Caveat No. 711450233 by the First Respondent lodged on the title of Unit 301, The Sands, 40 The Esplanade, Surfers Paradise and more particularly described as Lot 46, Building Unit Plan 82, County of Ward, Parish of Gilston be removed forthwith.

CATCHWORDS:

REAL PROPERTY - TORRENS TITLE - CAVEATS AGAINST DEALINGS - WHO MAY LODGE AND WHAT INTEREST SUFFICIENT – application to remove a caveat – where plaintiff bought property from a mortgagee exercising power of sale – where mortgagor attempted to sell the property and exercise a right of redemption - whether the subsequent purchaser has a caveatable interest.

Land Title Act 1994, s 127

Baypoint Pty Ltd v Baker (1994) 6 BPR 13,687
Chia v Rennie (1997) 8 BPR 15,601
Forsyth v Blundell (1973) 129 CLR 477
In re Caveat No 773; ex parte Hodgson (1873) 3 QCSR 158
McKean v Maloney [1988] 1 Qd R 628
R v Registrar of Titles; ex parte Watson [1952] VLR 470
Re Jorss’ Caveat [1982] Qd R 458 ,
Re McKean’s Caveat [1988] 2 Qd R 524
Rockett v Moneycorp Securities Pty Ltd & Anor [2007] QSC 389
Rudge v Richens (1873) LR 8 CP 358
Tendiris Pty Ltd v Ogle [2004] QSC 355

COUNSEL:

AI James for the plaintiff
PJ Favell for the first and second defendants

SOLICITORS:

Ffrench Commercial Lawyers for the plaintiff
Barry & Nilsson for the first and second defendants

This is an application pursuant to s 127 of the Land Title Act 1994 (“LTA”) seeking an order for the removal of a caveat lodged with respect to Lot 46 Building Unit Plan 82, County of Ward, Parish of Gilston. That lot is unit 301 in “The Sands”, a building at Surfers Paradise. Before the hearing of this matter, the first respondent removed her caveat over unit 216 in the same building and the second respondent removed its caveats over unit 216 and unit 301.

The registered proprietor of unit 301 and unit 216 is Zorzan-0003 Pty Ltd (“Zorzan”). Pavi Ucchino (“Ucchino”) is the sole shareholder and director of Zorzan.

It will assist in the understanding of this matter if I set out a brief chronology of relevant events.

September 1987–January 2006 The first respondent (“Evans”) was in a de facto relationship with Ucchino.

23 March 2006 Zorzan executed a second mortgage over both units in favour of Moneycorp Securities Pty Ltd (“Moneycorp”). The first registered mortgage over the properties was held by Wide Bay Australia Ltd.

23 May 2006 Zorzan defaulted under the mortgages to Moneycorp.

29 May 2006
Moneycorp faxed Ucchino a notice of default and advised that…

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 Rockett v Evans

Details

AGLC: Rockett v Evans [2008] QSC 227
Case: [2008] QSC 227
Decision Date: 3 October 2008

CaseChat Overview and Summary

In the case of Rockett v Evans, the plaintiff sought to remove a caveat lodged by the second respondent against the title of a unit in Surfers Paradise. The plaintiff had acquired the property through a power of sale exercised by a mortgagee. The second respondent, who had previously mortgaged the property and subsequently attempted to sell it, sought to lodge a caveat to exercise a right of redemption. The central issue before the court was whether the second respondent had a caveatable interest that could justify the lodging of the caveat against the plaintiff's title. The court was required to determine if the second respondent's attempt to exercise a right of redemption, after the property had been sold to the plaintiff, constituted a sufficient interest to warrant the lodging of a caveat.

The court examined the relevant provisions of the Property Law Act 1974, which outline the circumstances under which a caveat may be lodged. It considered the nature of the second respondent's interest, which was contingent upon the successful exercise of a right of redemption that had already lapsed. The court held that the second respondent's interest was insufficient to justify the lodging of a caveat, as it was speculative and did not represent a present or future interest in the property that was capable of being protected by a caveat. The court concluded that the caveat was improperly lodged and ordered its removal, recognising the plaintiff's clear title to the property.

Consequently, the court found in favour of the plaintiff and ordered that the caveat lodged by the second respondent be removed forthwith. This decision affirmed the plaintiff's title to the property and provided clarity on the conditions necessary for a caveat to be validly lodged under the Property Law Act 1974. The court's ruling ensured that the second respondent's attempt to assert a right of redemption, after the property had already been sold, did not interfere with the plaintiff's rights as the bona fide purchaser for value without notice.

Orders

Orders of the court

That Caveat No. 711450233 by the First Respondent lodged on the title of Unit 301, The Sands, 40 The Esplanade, Surfers Paradise and more particularly described as Lot 46, Building Unit Plan 82, County of Ward, Parish of Gilston be removed forthwith.

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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CITATION:	Rockett v Evans [2008] QSC 227
PARTIES:	LYNETTE JOY ROCKETT (plaintiff) v TRACY MICHELLE EVANS (first defendant) BORRUGURRA PTY LTD (ACN 107 081 569) (second defendant)
FILE NO/S:	4389/08
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	3 October 2008
DELIVERED AT:	Brisbane
HEARING DATE:	17 July 2008
JUDGE:	Martin J
ORDER:	That Caveat No. 711450233 by the First Respondent lodged on the title of Unit 301, The Sands, 40 The Esplanade, Surfers Paradise and more particularly described as Lot 46, Building Unit Plan 82, County of Ward, Parish of Gilston be removed forthwith.
CATCHWORDS:	REAL PROPERTY - TORRENS TITLE - CAVEATS AGAINST DEALINGS - WHO MAY LODGE AND WHAT INTEREST SUFFICIENT – application to remove a caveat – where plaintiff bought property from a mortgagee exercising power of sale – where mortgagor attempted to sell the property and exercise a right of redemption - whether the subsequent purchaser has a caveatable interest. Land Title Act 1994, s 127 Baypoint Pty Ltd v Baker (1994) 6 BPR 13,687 Chia v Rennie (1997) 8 BPR 15,601 Forsyth v Blundell (1973) 129 CLR 477 In re Caveat No 773; ex parte Hodgson (1873) 3 QCSR 158 McKean v Maloney [1988] 1 Qd R 628 R v Registrar of Titles; ex parte Watson [1952] VLR 470 Re Jorss’ Caveat [1982] Qd R 458 , Re McKean’s Caveat [1988] 2 Qd R 524 Rockett v Moneycorp Securities Pty Ltd & Anor [2007] QSC 389 Rudge v Richens (1873) LR 8 CP 358 Tendiris Pty Ltd v Ogle [2004] QSC 355
COUNSEL:	AI James for the plaintiff PJ Favell for the first and second defendants
SOLICITORS:	Ffrench Commercial Lawyers for the plaintiff Barry & Nilsson for the first and second defendants

September 1987–January 2006	The first respondent (“Evans”) was in a de facto relationship with Ucchino.
23 March 2006	Zorzan executed a second mortgage over both units in favour of Moneycorp Securities Pty Ltd (“Moneycorp”). The first registered mortgage over the properties was held by Wide Bay Australia Ltd.
23 May 2006	Zorzan defaulted under the mortgages to Moneycorp.
29 May 2006	Moneycorp faxed Ucchino a notice of default and advised that…