Underwood Investments Pty Ltd v Skyford Pty Ltd

[1990] TASSC 57

Serial No 55/1990
List "A"

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Underwood Investments Pty Ltd v Skyford Pty Ltd [1990] TASSC 57; A55/1990

PARTIES:  UNDERWOOD INVESTMENTS PTY LTD
  v
  SKYFORD PTY LTD

FILE NO/S:  M281/1990
DELIVERED ON:  9 October 1990
JUDGMENT OF:  Zeeman J

Judgment Number:  A55/1990
Number of paragraphs:  7

Serial No 55/1990
List "A"
File No M281/1990

UNDERWOOD INVESTMENTS PTY LTD
V SKYFORD PTY LTD

REASONS FOR JUDGMENT  ZEEMAN J

9 October 1990

1. By an originating application filed 27 August 1990 Underwood Investments Pty Ltd, described as being the registered proprietor of the land comprised and described in Certificate of Title Volume 4451 Folio 93, applied for "an order that Caveat No B308958 lodged by the abovenamed Respondent with respect to the said land, be removed". The form of order sought is not expressly authorised by s135(1) of the Land Titles Act 1980 but its intent is clear. The application is in the form of Form 4 contained in Schedule 1 of the Civil Process Rules 1985. Inter alia it is endorsed with a notice of hearing indicating that it had been set down for hearing before a judge in Chambers at Hobart on 17 September 1990 at 10.00am. There was no appearance for the respondent, which was the caveator, when the matter was called on before me on that day. The affidavit of Stuart Duncan Semmens satisfies me that the originating application was served by leaving it at the offices of Messrs Dobson Mitchell and Allport in Hobart by handing it to a person apparently over the age of 16 years at those offices, and that that person signed a form of receipt. I observe that there is no evidence that the person to whom the document was handed was an employee of the firm save and except to the extent that such status may be inferred from the form of the receipt signed by him or her. A copy of the caveat is in evidence. It is in the prescribed form. By the caveat the respondent declared its address for service of notices to be "Messrs Dobson Mitchell and Allport, Barristers and Solicitors, 59 Harrington Street, HOBART, TAS 7000". In the caveat the respondent disclosed the address of its principal office in Victoria as its address. The evidence discloses that the respondent is incorporated in Queensland.

1. The question arises as to whether service on the solicitors (if that in fact occurred) constitutes sufficient service upon the respondent. Order 9, r1(1) of the Rules of the Supreme Court requires that service of an originating proceeding shall be made personally unless otherwise prescribed or allowed. The effect of the submission made by counsel for the applicant is that s133(4) of the Land Titles Act 1980 is a provision which allows a summons under s135(1) of that Act to be served other than personally, namely, by serving it at the caveator's address for service stated in the caveat or at the office of the solicitor who signed the caveat. If s133(4) is to be so construed, then in this case service at the office of Messrs Dobson, Mitchell and Allport would be sufficient as constituting service in both of the ways permitted by that subsection.

1. Two types of notices are the subject of s133(4), namely:

(a)      a notice relating to a caveat lodged pursuant to s133; and

(b)      a notice relating to any proceedings in respect of such caveat.

1. It cannot be said that the originating application falls within the first category. If the mode of service adopted by the applicant is sufficient service, then it can only be upon the basis that the originating application falls into the second category.

1. A similar question was considered by Harvey CJ in Eq. in ReH M Drinkwater (1929) 46 WN (NSW) 202. In that case, a summons to remove a caveat had been served at the offices of the solicitor whose address was given in the caveat as that at which notices relating to the caveat might be served. His Honour was required to construe s72(2) and (3) of the Real Property Act 1900–1929 (NSW) (which provisions were in terms substantially similar to those contained in s133(2) and (4) of the Act) and to the Sixteenth Schedule (which prescribed the form of caveat, for relevant purposes in terms indistinguishable from the form of caveat prescribed under the Act). He concluded that service of the summons at the office of the solicitor was authorised by s72(3). His Honour referred to the words appearing in the form of caveat and said:

"In brackets after the word 'address' on the form appear the words 'state distinctly an address in Sydney at which notices relating hereto may be served'. In that phrase I think the words 'notices relating to the caveat' must be taken to have reference to s72(3) and to contemplate that not only notices relating to the caveat, but any proceedings in respect of the caveat may be served at that address."

1. That reasoning may not have direct application in the present case in that the prescribed form of caveat does not appear in the Act. The form of caveat is prescribed by the Land Titles Regulations 1981. In relation to an address for service the prescribed form contains the marginal note, "(5) State fully the caveator's address for service of notices." It is not possible to construe the terms of the Act by reference to subordinate legislation made pursuant to it (in ReK R Wood & Co [1962] Tas SR 227). Harvey CJ in Eq appears to have proceeded upon the basis that s72(3) referred to notices relating to the caveat and to any proceedings in respect of that caveat. I have some difficulty with that. Such a proposition appears to attach insufficient weight to the fact that what might be served in the manner referred to in s72(3) was a "notice relating ... to any proceedings in respect of the caveat".

1. Whilst it might be argued that the notice of hearing endorsed on the originating application in the present case is a notice within s133(4) of the Act, I do not consider that the application itself answers to the description of being a notice relating to any proceedings in respect of the caveat. The originating proceedings (constituted by the sealed application) must be served. In the course of those proceedings the circumstances may call for notices which require to be served. The latter may be served in the manner permitted by s133(4). The former may not be so served. With respect, I decline to follow ReH M Drinkwater (supra). It follows that in my view the originating application has not been served in a manner authorised either by the Rules of the Supreme Court or by the Act. Accordingly, I decline to determine the application at this stage and adjourn the further hearing sine die.