Tendiris Pty Ltd v Ogle - [2004] QSC 355

SUPREME COURT OF QUEENSLAND

CITATION:

Tendiris Pty Ltd v Ogle [2004] QSC 355

PARTIES:

TENDIRIS PTY LTD (ACN 061 286 815)
(applicant)

and

DONALD GORDON OGLE
(respondent)

FILE NO/S:

BS 5812 of 2004

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

13 October 2004

DELIVERED AT:

Brisbane

HEARING DATE:

15, 23 July 2004

JUDGE:

Atkinson J

ORDER:

1. Application allowed

2. Caveat should be removed forthwith

CATCHWORDS:

CONVEYANCING – LAND TITLE UNDER THE TORRENS SYSTEM – CAVEATS AGAINST DEALINGS – LAPSE, REMOVAL AND WITHDRAWAL – REMOVAL – where sale of land pursuant to mortgagee’s power of sale – whether caveator had caveatable interest against purchaser

Land Title Act 1994 (Qld), s 127
Property Law Act 1974 (Qld), s 85, 87

Brigers v Orr (1932) 32 SR (NSW) 634, cited
Cameron v Brisbane Fleet Sales Pty Ltd [2002] 1 Qd R 463, cited
Eng Mee Yong v Letchumanan [1980] AC 331, cited
Forsyth v Blundell (1973) 129 CLR 477, cited
Genrich v Maitland Holdings Pty Ltd [1982] Qd R 58, cited
Lewenberg & Pryles v Direct Acceptance Corp Ltd [1981] VR 344, cited
McPhee v Zarb [2002] QCA 530, cited
Re Burman’s Caveat [1994] 1 Qd R 123, cited
Re Caveat No 773, Ex parte Hodgson (1873) 3 QSCR 158, applied
Re Jorss’ Caveat [1982] Qd R 458, applied

Re McKean’s Caveat [1988] 1 Qd R 524, cited

COUNSEL:

M Stewart SC with J Houston for the applicant on 15 July
S Couper SC with J Houston for the applicant on 23 July
The respondent appeared on his own behalf

SOLICITORS:

John M O’Connor & Company for the applicant
The respondent appeared on his own behalf

The applicant, Tendiris Pty Ltd (“Tendiris”) applied for the removal of Caveat No. 707811293 (the “caveat”) from the title of lot 3 on RP 208443, County of Stanley, Parish of Parker (Title Reference 15959246) (“the land”). Tendiris purchased the land from the mortgagee in possession, Elliott & Harvey Mortgage Securities Limited (“EHMS”), in exercise of their power of sale over the land owned by the respondent, Donald Gordon Ogle. Mr Ogle is the caveator.

Mortgage of the land to EHMS

Mr Ogle as mortgagor executed a mortgage over the land in favour of EHMS in December 2001. Mortgage no. 705310541 (the “EHMS mortgage”) was registered on 8 January 2002. Mr Ogle wished to develop the land, which was zoned rural. On 21 June 2002 he applied to the Pine Rivers Shire Council (the “Council”) for a material change of use to allow the land to be developed as a low density residential sub-division. On 18 November 2002 on instructions from EHMS, the land was valued by John Watt & Associates. Their valuation of the land was $8,580,000. The following month the EHMS mortgage was increased to secure $4 million in debt.

On 25 March 2003, the Council refused the application for material change of use. The grounds for the decision were that it contained insufficient information; there were…

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 Tendiris Pty Ltd v Ogle

Details

AGLC: Tendiris Pty Ltd v Ogle [2004] QSC 355
Case: [2004] QSC 355
Decision Date: 13 October 2004

CaseChat Overview and Summary

In the Federal Court of Australia, Tendiris Pty Ltd brought an application against Ogle, the registered proprietor of certain land, regarding the removal of a caveat. The dispute arose from the sale of the land by the mortgagee, pursuant to the power of sale, to Tendiris. The caveat, which was lodged by Ogle, sought to prevent the registration of the sale, claiming a caveatable interest against the purchaser. The central issue before the Court was whether Ogle's caveat was valid and whether it could be removed in light of the sale.

The Court examined the statutory provisions governing caveats under the Torrens system and the circumstances in which a caveat may be removed. It considered the nature of the caveator's interest and whether it had a sufficient basis to prevent the registration of the sale. The Court noted that the caveat was lodged to protect a potential interest in the land, but the interest had not been substantiated or maintained effectively. Given that the sale had been conducted in accordance with the mortgagee's power of sale, the Court found that the caveat did not provide a valid ground for preventing the registration of the new proprietor. Therefore, the Court concluded that the caveat should be removed, as it no longer served a legitimate purpose in protecting a caveatable interest against the purchaser.

Following its reasoning, the Court allowed the application and ordered that the caveat lodged by Ogle be removed forthwith. This decision reinforces the principle that caveats must be based on a valid and subsisting interest to effectively challenge a sale under the Torrens system. The Court's decision also highlights the importance of maintaining and substantiating the interest behind a caveat to prevent its unjustified removal.

Orders

Orders of the court

1. Application allowed

2. Caveat should be removed forthwith

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:	Tendiris Pty Ltd v Ogle [2004] QSC 355
PARTIES:	TENDIRIS PTY LTD (ACN 061 286 815) (applicant) and DONALD GORDON OGLE (respondent)
FILE NO/S:	BS 5812 of 2004
DIVISION:	Trial Division
PROCEEDING:	Originating Application
ORIGINATING COURT:	Supreme Court
DELIVERED ON:	13 October 2004
DELIVERED AT:	Brisbane
HEARING DATE:	15, 23 July 2004
JUDGE:	Atkinson J
ORDER:	1. Application allowed 2. Caveat should be removed forthwith
CATCHWORDS:	CONVEYANCING – LAND TITLE UNDER THE TORRENS SYSTEM – CAVEATS AGAINST DEALINGS – LAPSE, REMOVAL AND WITHDRAWAL – REMOVAL – where sale of land pursuant to mortgagee’s power of sale – whether caveator had caveatable interest against purchaser Land Title Act 1994 (Qld), s 127 Property Law Act 1974 (Qld), s 85, 87 Brigers v Orr (1932) 32 SR (NSW) 634, cited Cameron v Brisbane Fleet Sales Pty Ltd [2002] 1 Qd R 463, cited Eng Mee Yong v Letchumanan [1980] AC 331, cited Forsyth v Blundell (1973) 129 CLR 477, cited Genrich v Maitland Holdings Pty Ltd [1982] Qd R 58, cited Lewenberg & Pryles v Direct Acceptance Corp Ltd [1981] VR 344, cited McPhee v Zarb [2002] QCA 530, cited Re Burman’s Caveat [1994] 1 Qd R 123, cited Re Caveat No 773, Ex parte Hodgson (1873) 3 QSCR 158, applied Re Jorss’ Caveat [1982] Qd R 458, applied Re McKean’s Caveat [1988] 1 Qd R 524, cited
COUNSEL:	M Stewart SC with J Houston for the applicant on 15 July S Couper SC with J Houston for the applicant on 23 July The respondent appeared on his own behalf
SOLICITORS:	John M O’Connor & Company for the applicant The respondent appeared on his own behalf