Veloudos v Young

[1981] FCA 255

Re: JOHN VELOUDOS, KATINA VELOUDOS, ANTHONY BAKAS, KRITA BAKAS, CONSTANTINE
BAKAVGAS, PAMAGIOTA BAKAVGAS, JIM BAKAVGAS and MARIA BAKAVGAS
And: GRANT CHARLES YOUNG (1981) 56 FLR 182
No. ACT G15 of 1980
Appeal from Supreme Court of the Australian Capital Territory - Real Property

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Davies(1), Lockhart(2) and Kelly(3) JJ.

CATCHWORDS

Appeal from Supreme Court of the Australian Capital Territory _ caveat subject of appeal withdrawn before hearing of appeal _ whether appeal competent substratum having gone _ unregistered lease for not more than 3 years _ Real Property Ordinance (ACT) 1925, ss.58, 85, 104 and 105 _ caveat _ amendment on summons for removal _ whether discretion to amend properly exercised _ matters to be considered

Real Property - Torrens title - Lease for three years with options for further three years - Lease unregistered - Whether lessee's interest protected - Whether caveat needed - Court's discretion to amend caveats - Real Property Ordinance 1925 (A.C.T.), ss. 58, 85, 104, 105.

Appeal - Subject matter of appeal withdrawn before hearing of appeal - Whether appeal competent.

HEADNOTE

The respondent claimed that by a written lease the appellants, owners of a Crown lease in the Australian Capital Territory, let to the respondent the premises for a term of three years with options to renew the lease for three further periods of three years each. The lease was not registered. After a dispute concerning the payment of rent the appellants purported to terminate the lease. The respondent then lodged a caveat forbidding the registration of any memorandum of transfer and some other interests affecting the said land. The appellants sought an order in the Supreme Court of the Australian Capital Territory for the removal of the caveat. The court dismissed the application and gave the respondent leave to amend the caveat. The appellants appealed against that order to the Full Court of the Federal Court of Australia but before the appeal was heard the respondent had withdrawn the caveat.

Held: Per Davies and Kelly JJ., Lockhart J. dissenting - The appeal should be allowed: (1) The power of the court to amend a caveat is discretionary. (Section 105 (3) of the Real Property Ordinance 1925 (A.C.T.) (the Ordinance).)

Elliott v. Blanshard (1970), 17 FLR 7, referred to.

(2) The interest of the lessee was protected whether or not the lease was registered and a caveat was not required to protect the leasehold interest (excluding the options) of the respondent against registered dealings. (Section 85 (1) of the Ordinance.)

195 Crown Street Pty. Ltd. v. Hoare; Ivermee (Third Party), (1969) 1 NSWR 193, referred to.

(3) This was an inappropriate case in which to give leave to amend the caveat.

Per Lockhart J. - The appeal should be dismissed because the courts will not decide a question that is academic in the sense that it is useless, merely hypothetical, or a dead issue unless the determination would be…