DISTRICT COURT OF QUEENSLAND
CITATION:
Theodore v. Mistford Pty Ltd & Ors (No. 2) [2002] QDC 296
PARTIES:
MARIE MARGARET THEODORE (Plaintiff)
And
MISTFORD PTY LTD ACN 050 406 650 (First Defendant)
And
MAX EGERTON VINES and
VALERIE LYNETTE VINES (Second Defendants)
And
GLEN DAVID THEODORE (First Third Party)
And
MOBILE LAB PTY LTD ACN 074 680 194 (Second Third Party)
FILE NO/S:
147 of 1998
DIVISION:
Civil
PROCEEDING:
Trial
ORIGINATING COURT:
District Court
DELIVERED ON:
14 November 2002
DELIVERED AT:
Maroochydore
HEARING DATE:
15-16 October 2002
JUDGE:
Judge J.M. Robertson
ORDER:
The plaintiff’s claim is dismissed with costs.
On the counterclaim:
1. I declare that there was, as at the 22nd of July, 1996 and still subsists, a binding agreement between the plaintiff and the first defendant and the second defendants that:
the Certificate of title to the land described as Lot 65 on registered plan 817375 County of Canning Parish of Mooloolaba contained in title reference 18689094 (“the land”) be deposited with the solicitors to the defendants;(a)
the plaintiff would provide to the defendants a guarantee and indemnity in terms of the deed contained in Exhibit 8;(b)
the plaintiff would grant a mortgage to the defendants over the land in the terms of the deed contained in Exhibit 8, such mortgage to remain unregistered until default on the part of the second third party;(c)
The plaintiff is to give effect to the declarations in 1(b) and (c) by executing the deed of mortgage and the deed of guarantee and indemnity in registrable form and by registering the mortgage;2.
The plaintiff and the first third party are jointly and severally liable to pay the defendants the sum of $69,904.88, together with costs of and incidental to the action, together with reserved costs and accepting costs previously ordered in the proceedings to be assessed on an indemnity basis if not agreed;3.
4. Liberty to apply in respect of any consent arrangements to substitute for existing injunctions; that liberty to apply can be exercised on three days’ notice by telephone and the consent arrangements can be arranged by facsimile.
CATCHWORDS:
DECLARATORY RELIEF – plaintiff seeks return of duplicate certificate of title lodged with defendants’ Solicitors by plaintiff’s son
EQUITABLE RELIEF – defendants’ counterclaim alleging agreement by plaintiff to provide security for purchase of business
EQUITABLE MORTGAGE – whether an equitable mortgage has to be in writing
EQUITABLE ESTOPPEL – conduct of the plaintiff subsequent to completion
FAILURE TO CALL WITNESS – where plaintiff fails to call son, Solicitor, Accountant and Bank Manager
Cases cited:
Theodore v. Mistford Pty Ltd & Ors [2001] QDC 212
Jones v. Dunkel (1959) 101 CLR 298
Payne v. Parker [1976] 1 NSWLR 191
RPS v. The Queen [2000] 168 ALR 729
Smith v. Samuels (1976) 12 SASR 573
Masters v. Cameron (1954) 91 CLR 353
Integrated Computer Services Pty Ltd v. Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR [97326]
Adamson v. Hayes (1973) 130 CLR 276
Balaglow v.…
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- Case
- [2002] QDC 296
- Decision Date
CaseChat Overview and Summary
The court reasoned that the creation of an equitable mortgage did not necessarily require a written document, aligning with the approach in Adamson v. Hayes. It was determined that the son, as the plaintiff’s agent, had the authority to lodge the deed as security for the purchase of the business. This action constituted an agreement to enter into a mortgage, which did not immediately create an interest in land and thus did not fall under the requirement of s.11(1)(a). The lodgement of the deed with the defendants' solicitors further evidenced the creation of an equitable mortgage under s.75(1) of the Land Title Act 1994. The court found that the plaintiff’s conduct amounted to an estoppel, preventing her from asserting her legal interest in the certificate of title.
Ultimately, the plaintiff’s claim was dismissed, and the defendants succeeded on their counterclaim. The court declared the existence of a binding agreement between the parties, ordered the plaintiff to execute and register the relevant documents, and directed the plaintiff to pay the defendants a specified sum, along with costs. The court also granted liberty to apply for consent arrangements to substitute existing injunctions.
Orders
Orders of the court
The plaintiff’s claim is dismissed with costs.
On the counterclaim:
1. I declare that there was, as at the 22nd of July, 1996 and still subsists, a binding agreement between the plaintiff and the first defendant and the second defendants that:
the Certificate of title to the land described as Lot 65 on registered plan 817375 County of Canning Parish of Mooloolaba contained in title reference 18689094 (“the land”) be deposited with the solicitors to the defendants;(a)
the plaintiff would provide to the defendants a guarantee and indemnity in terms of the deed contained in Exhibit 8;(b)
the plaintiff would grant a mortgage to the defendants over the land in the terms of the deed contained in Exhibit 8, such mortgage to remain unregistered until default on the part of the second third party;(c)
The plaintiff is to give effect to the declarations in 1(b) and (c) by executing the deed of mortgage and the deed of guarantee and indemnity in registrable form and by registering the mortgage;2.
The plaintiff and the first third party are jointly and severally liable to pay the defendants the sum of $69,904.88, together with costs of and incidental to the action, together with reserved costs and accepting costs previously ordered in the proceedings to be assessed on an indemnity basis if not agreed;3.
4. Liberty to apply in respect of any consent arrangements to substitute for existing injunctions; that liberty to apply can be exercised on three days’ notice by telephone and the consent arrangements can be arranged by facsimile.
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
For my purposes, it is desirable to follow the approach of the majority in Adamson v. Hayes (1973) 130 CLR 276 which is that (s.11(1)(a)) applies to equitable as well as legal interests in land. The wording of s.11(1)(a) seems to contemplate four circumstances which create or dispose of an interest in land namely a writing signed by the person creating or conveying the same, or by the person’s agent lawfully authorised in writing, or by will, or by operation of the law. Presumably this means that an interest in land can be created “by operation of the law” which may not require anything to be in writing. I have not been referred to any authority dealing with this aspect of construction, and will proceed on the basis of such authority as there is in relation to s.11(1)(a) or its equivalent. The distinction made by various members of the High Court in Adamson v. Hayes as to the applicability of (the equivalent provision to s.11(1)(a) in that case) is between an agreement to assure property in the future and the future assurance. The distinction is discussed by Giles J (with whom Mason P agreed) in Balaglow v. Konstandidis & Ors [2001] NSWCA 451 (6 December 2001). In that case, the agreement found to have been made was an agreement to dispose of an interest in land, with the disposition to come when the agreement was performed, but no interest in land was disposed of within (s.11(1)(a)). Applying that analysis to the facts of this case, I have found that the son as her agent was authorised by the plaintiff to lodge the deed as security for the purchase of the business; and that a contract of the type referred to in Masters v. Cameron as the first class was made; which included an agreement to enter into a mortgage over the land. Clearly, the mortgaging of real property is creating an “interest in land”, however an agreement to enter into a mortgage does not thereupon create an interest in land and s.11(1)(a) does not apply. The creation of an equitable mortgage is further evidenced here by the lodgement of the deed with the defendant’s Solicitors: s.75(1) of the Land Title Act 1994. The defendants argue that in acting as she did, the plaintiff is now estopped from setting up her legal interest in the certificate of title. In Walton Stores v. Maher (1988) 164 CLR 387 Brennan J (as His Honour then was) said (at 428-429):- At pages 406-7 Mason CJ and Wilson J describe the “crucial question” as being whether the appellant was “entitled to stand by in silence when it must have known that the respondents were proceeding on the assumption that they had an agreement and that completion of the exchange was a formality?” Applying that authority to the facts of this case: It follows that the plaintiff’s claim must fail and that the defendants should succeed on their counterclaim. I will deliver a draft of these reasons to both Counsel with a view to inviting submissions, and perhaps agreement, as to the appropriate orders both as to relief and costs.