Boral v Aghili [2009] ACTCA 18

It seems plain from the papers that the Master should not have embarked upon issues concerning the construction of the guarantee or issues concerning the enforcement of the charge.

Court Procedures Rules 2006 (ACT) (CPR), r 706(2)(c), provides a procedure to extend the operation of a caveat under the Land Titles Act 1925 (ACT) (Land Titles Act) and that would appear to be a process available, even if there are other processes which could be said to be available for the extension of a caveat.

[Rule 706 provides: 706 Urgent orders before start of proceeding (NSW r 25.2; Qld r 254) (1) This rule applies— (a) in urgent circumstances; and (b) if the person applying for an order mentioned in subrule (2) intends to start a proceeding. (2) Before the proceeding starts, the court may do any of the following as if the proceeding had started: … (c) make an order extending the operation of a caveat, including, for example, under the Land Titles Act 1925; Note An example is part of these rules, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132). … (3) Subrule (2) does not limit the orders the court may make before a proceeding starts. (4) An application for an order mentioned in subrule (2) must be made by originating application. Note Div 2.2.3 (Originating applications) contains provisions about the content of originating applications, the filing and service of originating applications, etc. (5) An application for an order mentioned in subrule (2) should be served, but if the court is satisfied there is adequate reason for doing so, it may make the order without the application being served on anyone. (6) The person must give an undertaking to the court that the person will file originating process starting the proceeding not later than— (a) the end of the time ordered by the court; or (b) if the court does not make an order mentioned in paragraph (a)—2 days after the day the order mentioned in subrule (2) is made. …]

It is plain that the issues raised by r 706 were not the subject of consideration by the Master and, in particular, issues concerning the issuing of process to start proceedings. Had process been required to be issued, then the matters which concerned the Master regarding the construction of the guarantee would have had to be considered in those proceedings. Those proceedings would seem to be the most appropriate way for such issues to be determined.

Having regard to those matters, the appeal should be upheld.

There is the remaining difficulty that, as there was no order extending the caveat, it has been removed by the expiration of 14 days from the time that the application for its removal had been made. [Section 107 of the Land Titles Act provides: 107 Removal of caveat (1) A registered proprietor to whose interest in land a caveat relates may apply to the registrar-general to have the caveat removed. Note 1 A fee may be determined under s 139 (Determination of fees, charges and other amounts) for lodgment of an application to remove a caveat. Note 2 If a form is approved under s 140 (Approved forms) for an application, the form must be used. (2) On receipt of an application under subsection (1), the registrar-general shall— (a) give notice of the application to the caveator; and (b) not less than 14 days from the date of service of the notice, remove the caveat from the register, unless the court otherwise orders. (3) If the registrar-general believes on reasonable grounds that the caveator’s interest has been extinguished by the transfer of the whole of the registered proprietor’s interest to another person, the registrar-general may— (a) give notice to the caveator that he or she believes that the caveator’s interest has been extinguished and that he or she intends to remove the caveat from the register; and (b) not less than 14 days from the date of service of the notice, remove the caveat from the register, unless within that time— (i) the caveator shows to the satisfaction of the registrar-general that his or her interest has not been extinguished; or (ii) the court otherwise orders.]

It seems to us that the appropriate way to restore the parties as nearly as practicable to the position before the Master’s order is for this Court to make an order under s 107C of the Land Titles Act. Subsection (1) of that section provides that where a caveat has been removed by the Registrar-General in accordance with s 107(2), the Registrar-General shall not enter on the register any subsequent caveat affecting the same land or interests by the same person or for the same purpose except by order of the Court. It would seem appropriate to make such an order and, accordingly, the Court will order that the Registrar-General enter upon the Register a caveat in the same terms as the caveat that was removed previously by operation of s 107(2)(b) of the Land Titles Act.

We point out to Mr Aghili that the registered proprietor may at any time after that registration, apply to have that caveat removed or, as in this case, again apply to have the caveat removed and if [the respondent] Mrs Aghili does so, then the appellant in these proceedings can take such steps as it is advised in respect of it.

On 3 September 2008, an order was made by Refshauge J in the course of these proceedings, on the application of the appellant, by way of an injunction to Mrs Aghili as respondent to these appeal proceedings, her employees and agents, in order to preserve the appellant’s interest in the property under appeal. That order, namely that the respondent, by herself, her employees and agents be restrained from selling, mortgaging, encumbering or otherwise dealing with the land described as block 12, section 6, Forrest in the Australian Capital Territory, situated at 8 Somers Crescent, Forrest, in the said Territory, was extended to the time of the hearing of this appeal.

In light of the order that we make allowing the appeal, we would further extend the operation of that order until 5.00 pm on Thursday, 13 August 2009. That, in effect, gives the appellant the opportunity, up to that time, to file the successive caveat in accordance with the order that we have made.

We order that the appeal is upheld in the terms that we have indicated. We make no order as to costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.