Elliott v Elly Property Wright Residential Pty Ltd

Proceedings SC 21 of 2025 Bivek Palikhey (First Plaintiff) Silu Tamrakar (Second Plaintiff) Elly Property Wright Residential Pty Ltd (Defendant) Representation: Counsel A Chakrabarty (Plaintiffs) D Robens (Defendant) Solicitors Adero Law (Plaintiffs) Self-represented (Defendant) File Numbers: SC 181 of 2024 SC 21 of 2025 MULLER AJ: Introduction

1. These proceedings both concern a property development at Wright in the ACT, known as “Debut”. It is a large residential development comprising units and townhouses. The development is at or nearing completion and a certificate of occupancy and use was issued by the ACT Construction Occupations Registrar on 30 May 2025. The owners of the site and the development would now like to proceed with the registration of a units plan. Once registration of the units plan occurs, the parcel of land currently described as Block 4, Section 64, Wright, will be subdivided as specified in the diagram in the units plan. That step is required before certificates of title are created and the completion of the sales of the various individual units and townhouses can proceed.

2. Each of these proceedings involve the same defendant, and in each proceeding the defendant has filed an application seeking identical orders for the removal of a caveat to enable the registration of the units plan. The plaintiffs and defendants in each proceeding were represented by the same lawyers at the hearing before me, and the applications were heard together.

3. In those circumstances it is convenient to deal with the matters in a single decision. I shall refer to the plaintiffs in the first matter as EV and in the second matter as PT.

4. EV and PT have each purchased units in Debut. The history of the engagement between the purchasers and the developer over the period since the contracts for sale were initially entered into has been complex and at times strained. It has included a number of applications to the court. Relevantly for the purposes of considering the applications before me: (a) After entering into respective contracts for sale of off-the-plan properties in Debut, EV and PT each received letters proposing rescission of the contracts. (b) In the case of EV, offers were then exchanged by the parties in relation to monetary compensation to the purchasers to support their agreement to rescind. That resulted in court proceedings seeking a determination of whether a binding and enforceable agreement had been reached between the parties. In a decision dated 6 June 2023, Curtin AJ determined that no such agreement was formed: see Elly Property Wright Residential Pty Ltd v Elliott [2023] ACTSC 138. (c) EV and PT subsequently elected to protect their respective interests under the contracts with the lodgement of caveats. Each of the existing caveats applies to the whole of the land in Block 4, Section 64, Wright. (d) There is no dispute that the contracts for sale of the units create a caveatable interest in the land within the meaning of s 104(1)(b) of the Land Titles Act 1925 (ACT) (the LTA), notwithstanding that the units plan is yet to be registered: see Elliott v Elly Property Wright Residential Pty Ltd [2024] ACTSC 192 at [19]. (e) In each of the matters applications were made by the defendant for removal of the caveats, and orders were subsequently made extending the caveats until further order of the court. (f) The parties in each matter agree that it is in their mutual interest to facilitate the registration of the units plan for Debut so that the property sales may be completed. (g) The parties also agree that once registration of the units plan occurs the caveatable interests of each of the plaintiffs will be limited to the title for the unit they each have contracted to purchase. (h) The residual dispute between the parties is in relation to the form of orders required to facilitate the registration of the units plan whilst maintaining the protection for the plaintiffs afforded by the existing caveats.

Effect of registration of units plan

5. Sections 32 and 33 of the Unit Titles Act 2001 (ACT) (the UTA) provide: 32 Subdivision of parcel made by registration On and after the registration of a units plan, the parcel is subdivided as specified in the diagrams in the units plan.

33 Leases of units and common property (1) On the registration of a units plan, the lease of the parcel ends. (2) On registration of the units plan— (a) the former lessee is granted a lease for each unit in the units plan; and (b) the owners corporation is granted a lease for the common property. (3) A lease mentioned in subsection (2)— (a) is subject to the provisions set out in the units plan; and (b) is taken to be granted by the Territory under the Planning Act 2023, chapter 10. Note 1 On the registration of a units plan, an owners corporation for the units plan is established (see Unit Titles (Management) Act 2011, s 8). Note 2 The original lease for the parcel is cancelled on registration of the units plan (see Land Titles (Unit Titles) Act 1970, s 10 (1) (a)). If a registered units plan is subsequently cancelled the leases under this section are cancelled and the new lease that arises reverts to the terms of the original lease (see s 162 and s 163).

6. The registration of the units plan thus has the effect of subdividing the existing parcel into a specified number of lots or units as set out in the diagram forming part of the units plan. Section 33 makes clear that upon registration, the existing lease of the parcel ends, and the former lessee receives a lease for each unit in the units plan. The owners corporation for the development is also established.

7. It follows that a caveat cannot continue over the existing parcel as the parcel ends on registration. There is otherwise nothing in Pt 4 of the UTA that deals with the process for management of caveats upon registration of the units plan.

8. The court is afforded broad powers to make orders in relation to land subject to a caveat, pursuant to s 105(3) of the LTA: 105 Notice of caveat … (3) The court or judge, upon proof that the caveator has been given notice of the application for the order, may make such order in relation to the land, either ex parte or otherwise, as to the court or judge seems fit. Proposed orders

9. The orders proposed by the applicant/defendant in each matter are:

EV (SC 181 of 2024) 1․ The Registrar General is to remove caveat number [3311785] lodged by Christopher Ross [Elliott] and Thuy Quynh Trang Vu from the title of Block 4, Section 64, Division of Wright in Volume 2419 Folio 25. 2․ Upon the registration of the units plan for Block 4, Section 64, Division of Wright in Volume 2419 Folio 25, Christopher Ross [Elliott] and Thuy Quynh Trang Vu are entitled to lodge a caveat over unit 1, Block 4, Section 64, Division of Wright in Volume 2419 Folio 25. 3․ The plaintiffs are to pay the defendant’s costs of this application. PT (SC 21 of 2025) 1. The Registrar General is to remove caveat number 3348282 lodged by Bivek Palikhey and Silu Tamrakar from the title of Block 4, Section 64, Division of Wright in Volume 2419 Folio 25. 2. Upon the registration of the units plan for Block 4, Section 64, Division of Wright in Volume 2419 Folio 25, Bivek Palikhey and Silu Tamrakar are entitled to lodge a caveat over unit 13, Block 4, Section 64, Division of Wright in Volume 2419 Folio 25. 3. The plaintiffs are to pay the defendant’s costs of this application.

10. The respondents/plaintiffs propose the following orders across both matters: 1․ The matters of SC 181/2024 and SC 21/2025 be heard together (the Matters) under rule 270 of the Court Procedures Rules 2006, with evidence in one to be the evidence in another. 2․ Upon the Plaintiffs giving the usual undertaking as to damages, caveat number 3311785 lodged by the Plaintiffs of SC181/2024 and caveat number 3348282 lodged by the Plaintiffs of SC 21/2025 (the Caveats) in respect of Block 4, Section 64, Division of Wright in Volume 2419 Folio 25 in the Australian Capital Territory (Land), is to remain registered on title until further order of the Court. 3․ Despite the Caveats, the Registrar General may register a Units Plan for the property at the Land. 4․ Upon the registration of the Units Plan pursuant to order 3, the Plaintiffs of the Matter are to lodge forthwith further caveats in relation to units 1 and 13 (the Units) in the units plan only and, upon doing so the Caveats lapse. 5․ The Defendant is to pay the First and Second Plaintiffs’ costs of the proceedings which was reserved by his Honour Justice Mossop on 21 June 2024. 6․ The Defendant is to pay the First, Second, Third and Fourth Plaintiffs’ costs for the applications in proceedings filed on 17 July 2025 and heard on 4 July 2025. (Emphasis in original.) Submissions of the applicant/defendant

11. Counsel for the defendant submitted, in effect: (a) There was agreement between the parties that registration of the units plan needed to occur, and that EV and PT could take no more than an interest over the unit purchased; (b) The protection in the Civil Law (Property) Act 2006 (ACT) had the effect that the subject contracts could not be rescinded; (c) All that was required was the determination of the mechanical process to be followed; (d) In view of advice from the assistant manager of the Land Titles Office (LTO), the orders proposed by the defendant were the most effective means of affording each party the necessary protection; (e) The logic underpinning those orders was that the existing caveats applied to the whole block, which will be subject to a subdivision upon registration of the units plan; (f) The protection provided in the orders ensures the units plan can only be registered if new forms of caveat are lodged at the same time; and (g) In the light of all of the material now before the Court, each party should bear its own costs of the application.

12. As to the correspondence with the assistant manager of the LTO, in evidence before me was an email from Lexmerca lawyers to the LTO dated 26 June 2025 which is reproduced below: Our client (registered proprietor) is trying to arrange lodgement of a units plan on the attached title. There are two caveats and two court orders (the court orders maintaining the caveats), with two ALXs [applications for lapsing of caveat] on there as unregistered. One of the caveators is proposing the attached Orders, to allow the units plan to register. I’m not convinced these Orders work, as they seem to say the caveat is maintained when the units plan is registered, whereas I thought the caveat needed to come off for units plan registration. What are your thoughts? Would you prefer Orders that state the caveat is to be removed when a units plan is lodged, and a new caveat is registered on the title to unit 1 immediately after registration of the units plan? Please assume that the second caveator will ask for the same Orders. (Emphasis in original.)

13. The response received from the LTO is also reproduced: Yes the order will need [to] state the caveats and Lapsing’s to be withdrawn from the Title to allow registration of the Unit Plan and a new caveat/s can be lodged immediately after the registration on the unit/s required. A withdrawal of document will be required for the lapsing’s and WX [withdrawal of caveat] for the caveats and the order issued will remove the registered order on Title. The lodgement of the new Caveats can be lodged at the same time as the plan as long as all the land details are completed except Volume and Folio and we can enter those details as soon as plan is registered. Submissions of the respondent/plaintiff

14. A significant portion of the plaintiffs’ submissions were directed to the history of the matter and the form of communication between the parties from time to time. It is quite apparent from the material to which I was taken that communications were received from time to time from representatives of the defendant company (I should emphasise, not including their legal representatives) that were aggressive, overbearing and threatening. Whilst those communications do not reflect well on some agents of the defendant, they did not bear directly on the issue of determining what orders are appropriate to ensure the continuation of the protection provided to the plaintiffs by the caveats.

15. In that regard, the submissions of counsel for the plaintiffs may be summarised as: (a) The effect of the communication from the LTO was difficult to determine; (b) The decision of Mossop J in Burnett v 3 Property Group 10 Pty Ltd (No 2) [2023] ACTSC 215 (Burnett (No 2)) was instructive in terms of the appropriate form of order in this case, and the orders proposed by the defendants in this case were modelled on those made by his Honour in that case; and (c) The orders proposed provided the highest protection that the caveat could offer the purchasers.

16. In relation to costs, the plaintiffs pressed for an order in the plaintiffs’ favour in respect of the costs of the application, relying upon the history of the conduct of the parties to which I have alluded above.

Consideration

17. In Burnett (No 2), Mossop J made the following form of orders: 4․ Upon the plaintiffs giving the usual undertaking as to damages, [the lodged caveat] in respect of [the land], is to remain registered on title until further order of the Court. 5․ Despite the Caveat, the Registrar General may register a Units Plan for the property at the Land. 6․ Upon the registration of the Units Plan pursuant to order 5, the First Plaintiff is to lodge forthwith a further caveat in relation to [a unit number on the land] in the units plan only and, upon doing so the [lodged] Caveat lapses.

18. The orders in Burnett (No 2) were clearly made in contemplation of the registration of a units plan. Notwithstanding that those orders were made almost two years ago, in a matter involving the same legal representatives, I was not alerted to whether or not the process envisaged by those orders for the management of the caveat in that case were effective, or gave rise to any difficulties. In view of the more recent communication from the LTO suggesting a mechanism for proceeding that requires different orders, the Court is left in an unsatisfactory situation.

19. What is clear from the legislation is that: (a) Upon registration of the units plan the existing lease of the parcel ends (s 33 of the UTA); and (b) The court may make such order in relation to the land as the court deems fit (s 105(3) of the LTA).

20. I accept that it is in the interests of all parties that I make orders which facilitate the registration of the units plan without further delay. Recognising the plaintiffs’ respective continuing caveatable interests in the land comprising the properties they have purchased, it is important that those orders also ensure the continued protection of those interests.

21. In relation to costs, the orders I make are a hybrid of those proposed by the parties. The overbearing conduct of the defendant in advance of the filing of this application was probably of little assistance in procuring an agreement concerning appropriate orders. Ultimately it will be for the plaintiffs to establish that there was a proper basis for the filing of the originating application in each of the matters. Weighing all of the factors, an order that the costs be costs in the cause is appropriate.

Orders

22. I make the following orders in SC 181 of 2024: (1) Upon the plaintiffs giving the usual undertaking as to damages, caveat number 3311785 lodged by the plaintiffs in respect of Block 4, Section 64, Division of Wright in Volume 2419 Folio 25 in the Australian Capital Territory is to remain registered on title until registration of a units plan in respect of the parcel of land. (2) The plaintiffs are to provide the defendant with a signed form of caveat stating their interest in unit 1, Block 4, Section 64, Division of Wright in Volume 2419 Folio 25 in the Australian Capital Territory on or before 8 August 2025 (“the new caveat”). (3) The defendant is to lodge the units plan for registration together with: (a) Withdrawal of the application for lapsing of caveat 3311785; and (b) The new caveat. (4) Immediately prior to the registration of the units plan the Registrar General must remove caveat number 3311785. (5) Immediately after the registration of the units plan the Registrar General must enter the new caveat in the register. (6) The costs of the application are to be costs in the cause.

23. I make the following orders in SC 21 of 2025: (1) Upon the plaintiffs giving the usual undertaking as to damages, caveat number 3348282 lodged by the plaintiffs in respect of Block 4, Section 64, Division of Wright in Volume 2419 Folio 25 in the ACT is to remain registered on title until registration of a units plan in respect of the parcel of land. (2) The plaintiffs are to provide the defendant with a signed form of caveat stating their interest in unit 13, Block 4, Section 64, Division of Wright in Volume 2419 Folio 25 on or before 8 August 2025 (“the new caveat”). (3) The defendant is to lodge the units plan for registration together with: (a) Withdrawal of the application for lapsing of caveat 3348282; and (b) The new caveat. (4) Immediately prior to the registration of the units plan the Registrar General must remove caveat number 3348282. (5) Immediately after the registration of the units plan the Registrar General must enter the new caveat in the register. (6) The costs of the application are to be costs in the cause.

I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Muller. Associate: Date: