Suncorp Metway Ltd v Siulangapo Inc - [2017] QSC 16

SUPREME COURT OF QUEENSLAND

CITATION:

Suncorp Metway Ltd v Siulangapo Inc [2017] QSC 16

PARTIES:

SUNCORP METWAY LTD
ACN 660 108 317 22

(applicant)

v

SIULANGAPO INC

(respondent)

FILE NO/S:

BS875 of 2017

DIVISION:

Trial Division

PROCEEDING:

Originating Application

DELIVERED ON:

27 February 2017

DELIVERED AT:

Brisbane

HEARING DATE:

9 February 2017

JUDGE:

Brown J

ORDERS:

The order of the court is that:

1. That caveat number 717706206 lodged by the respondent on the Title of 1 Buccanerra Way, Coomera Waters and more particularly described as Lot 290 on SP150124, Title Reference 50427913, be removed forthwith.

2. That the respondent pay the applicant’s costs of this Originating Application to be calculated on a standard basis.

CATCHWORDS:

REAL PROPERTY – TORRENS TITLE – CAVEATS AGAINST DEALINGS – REMOVAL – where the applicant filed an application to remove a caveat – where the applicant is a registered proprietor by virtue of holding a registered mortgage – where the caveat lodged by the respondent claims an equitable interest as purchaser of fee simple pursuant to a contract of sale – where the caveat would prevent the registration of the mortgagee’s sale – whether the caveat should be removed

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – SERVICE – GENERALLY – where the address listed on the caveat registered by the respondent was a PO Box address – where service of this applicant was sent to the PO Box address – where no response has been received from the respondent – where searches have been undertaken nationally and internationally to find the respondent business and its contact details, with no success – whether the notice to the caveator has been sufficiently served by sending the service of the application to the PO Box

Corporations Act 2001 (Cth), s 601CX(1)
Land Title Act 1994 (Qld), s 121(2)(b), s 122(1), s 127 s 131(1), s 184

Cousins Securities Pty Ltd v CEC Group Ltd [2007] 2 Qd R 520; [2007] QCA 192, cited
National Australia Bank Ltd v Waldron (also known as Sgaretta) [2015] VSC 141, cited
Re Drinkwater (1929) 46 WN (NSW) 202, cited

Ross Cook and Brett Cook Pty ltd v Bli Bli #1[2009] QSC 300, cited

Underwood Investments Pty Ltd v Skyford Pty Ltd (1990) Tas R 206, considered

COUNSEL:

A Newman for the applicant

No appearance for the respondent

SOLICITORS:

Mills Oakley for the applicant

No appearance for the respondent

BROWN J: The applicant filed an application on 30 January 2017 to remove a caveat with dealing number 717706206 lodged on 9 December 2016 (“the caveat”) over Lot 290 on Survey Plan 150124, Title Reference 50427913 (“the relevant lot”).

The applicant is a registered proprietor of the property by virtue of its holding a registered mortgage which was registered on 6 September 2011.

The caveat lodged by the respondent claimed an equitable interest as purchaser of an estate in fee simple pursuant to a contract of sale dated 31 October 2015 executed by the registered…

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] QSC 16
Decision Date: 27 February 2017

CaseChat Overview and Summary

Suncorp Metway Ltd, the mortgagee, sought to remove a caveat lodged by Siulangapo Inc, the respondent, which claimed an equitable interest as the purchaser of a fee simple under a contract of sale. The dispute centred on the removal of the caveat which, if not removed, would prevent the registration of the mortgagee's sale of the property. The case was heard in the Queensland Civil and Administrative Tribunal (QCAT).

The central legal issues were whether the applicant had sufficiently served the respondent by sending the notice of the application to the PO Box address listed on the caveat, and whether the caveat should be removed. The respondent's address was a PO Box, and despite national and international searches, the respondent's current contact details could not be found. The QCAT needed to determine if the service of the application was adequate under these circumstances.

The tribunal concluded that service of the application was validly executed by sending it to the PO Box address listed on the caveat. As the respondent had not responded to the application, the tribunal found that the caveat should be removed. The tribunal further ordered that the respondent pay the applicant's costs of the application, to be calculated on a standard basis.

The orders of the tribunal were that the caveat lodged by the respondent be removed forthwith and that the respondent pay the applicant's costs of the originating application.

Orders

Orders of the court

The order of the court is that:

1. That caveat number 717706206 lodged by the respondent on the Title of 1 Buccanerra Way, Coomera Waters and more particularly described as Lot 290 on SP150124, Title Reference 50427913, be removed forthwith.

2. That the respondent pay the applicant’s costs of this Originating Application to be calculated on a standard basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Suncorp Metway Ltd v Siulangapo Inc [2017] QSC 16
PARTIES:	SUNCORP METWAY LTD ACN 660 108 317 22 (applicant) v SIULANGAPO INC (respondent)
FILE NO/S:	BS875 of 2017
DIVISION:	Trial Division
PROCEEDING:	Originating Application
DELIVERED ON:	27 February 2017
DELIVERED AT:	Brisbane
HEARING DATE:	9 February 2017
JUDGE:	Brown J
ORDERS:	The order of the court is that: 1. That caveat number 717706206 lodged by the respondent on the Title of 1 Buccanerra Way, Coomera Waters and more particularly described as Lot 290 on SP150124, Title Reference 50427913, be removed forthwith. 2. That the respondent pay the applicant’s costs of this Originating Application to be calculated on a standard basis.
CATCHWORDS:	REAL PROPERTY – TORRENS TITLE – CAVEATS AGAINST DEALINGS – REMOVAL – where the applicant filed an application to remove a caveat – where the applicant is a registered proprietor by virtue of holding a registered mortgage – where the caveat lodged by the respondent claims an equitable interest as purchaser of fee simple pursuant to a contract of sale – where the caveat would prevent the registration of the mortgagee’s sale – whether the caveat should be removed PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – SERVICE – GENERALLY – where the address listed on the caveat registered by the respondent was a PO Box address – where service of this applicant was sent to the PO Box address – where no response has been received from the respondent – where searches have been undertaken nationally and internationally to find the respondent business and its contact details, with no success – whether the notice to the caveator has been sufficiently served by sending the service of the application to the PO Box Corporations Act 2001 (Cth), s 601CX(1) Land Title Act 1994 (Qld), s 121(2)(b), s 122(1), s 127 s 131(1), s 184 Cousins Securities Pty Ltd v CEC Group Ltd [2007] 2 Qd R 520; [2007] QCA 192, cited National Australia Bank Ltd v Waldron (also known as Sgaretta) [2015] VSC 141, cited Re Drinkwater (1929) 46 WN (NSW) 202, cited Ross Cook and Brett Cook Pty ltd v Bli Bli #1[2009] QSC 300, cited Underwood Investments Pty Ltd v Skyford Pty Ltd (1990) Tas R 206, considered
COUNSEL:	A Newman for the applicant No appearance for the respondent
SOLICITORS:	Mills Oakley for the applicant No appearance for the respondent