Plaintiff v Defendant

2 The substantive relief sought by Traditional in its originating motion, which was also reflected in its summons of the same date, is found in paragraph 4 and paragraph 5 of its originating motion and its summons.

The court direct that the second defendant to delay registering dealing number AG 456246X lodged by the first defendant against Certificate of Title volume 7208 folio 435 until further order.

4 And by paragraph 5 the following relief is sought:

Further and alternatively to (4), the court direct the second defendant to maintain the priority of the plaintiff's caveat registered in dealing number AE 867103W upon any eventual registration of the first defendant's dealing number AG 456246X lodged against Certificate of Title volume 7208 folio 435.

5 The first defendant, Crane, has applied by summons, which it filed 11 June 2009, for summary dismissal of Traditional's proceeding pursuant to rules 23.01 or 23.03 on the ground that the time limited by s.90(2) of the Transfer of Land Act has expired.

6 I have reviewed the affidavits filed in the proceeding, namely the affidavit of Elizabeth Louise Clegg, sworn 18 May 2009 on behalf of the plaintiff, an affidavit of George Leonidas, sworn 11 June 2009, filed on behalf of the first defendant, and an affidavit of Lewis Raymond Hay, sworn 11 June 2009, also filed on behalf of the first defendant.

7 I am satisfied that the evidence discloses the following matters: on 29 April 2004, Crane took out a charge and equitable mortgage from Robert Walpole, one of two joint registered proprietors of the land described in Certificate of Title 7208 folio 435, which I will call the land. On 18 January 2007 the plaintiff searched the register. No caveat had been lodged by the first defendant. On 25 January 2007 the plaintiff took a mortgage in registrable form from the joint registered proprietors of the land as collateral security. The plaintiff's mortgage remains unregistered. On 30 January 2007, the plaintiff lodged a caveat over the title to the land. On 30 September 2008, the first defendant entered into terms of settlement of a County Court proceeding to enforce its charge and equitable mortgage with Mr Walpole which included the giving by Mr Walpole of a mortgage over the land in registrable form. Following default by Mr Walpole the first defendant lodged its mortgage for registration. On 21 April 2009 the Registrar of Titles sent a notice to the plaintiff pursuant to s.90(1) of the Transfer of Land Act. No order has been made by the Court under s.90(2) directing the registrar to delay registering the first defendant's mortgage.

8 There was an order made by the Honourable Justice Cavanough in the proceeding on 29 May 2009 on the plaintiff's summons filed 19 May 2009. By that order, the Court ordered:

(1) The second defendant, that is the Registrar Of Titles, be restrained from registering dealing number AG 456246X lodged by the first defendant against Certificate of Title volume 7208 folio 435 until 5 pm on Wednesday, 17 June 2009 or further order.

(2) The further hearing of this proceeding be adjourned to 10.30 am on Wednesday 17 June 2009 in the Practice Court.

9 That order was supplemented by a number of directions as to the filing of affidavits and like matters.

10 Subsequently, the matter was adjourned on a number of occasions and came on before me in the Practice Court yesterday, 30 September 2009.

11 The orders made by Justice Cavanough, in my opinion, were made in the inherent jurisdiction of the Court to preserve the subject matter of the litigation. They were not orders made within the purview of s.90(2) of the Transfer of Land Act.

12 When the matter came on for hearing yesterday, 30 September 2009, the plaintiff, Traditional, was called but there was no appearance on behalf of that party. The matter proceeded ex parte on the application of the first defendant, Crane.

13 The matter proceeded as a determination of a preliminary point raised in the first defendant's summons, namely whether or not the time permitted by s.90(2) of the Transfer of Land Act had expired with the consequence that the proceeding of the plaintiff by its originating motion supported by its summons should be summarily dismissed.

14 Section 90(1) and (2) of the Transfer of Land Act 1958 provides:

1. Except in certain cases caveat to lapse after thirty days notice given to caveator

(1) Subject to this Act every such caveat except a caveat lodged by the Registrar shall lapse as to any land affected by any transfer or other dealing other than-

(a) a transmission under Division two of Part IV; or

(b) a transfer or dealing as to which the caveator or his agent has lodged with the Registrar his consent in writing; or

(c) in the case of a caveat lodged by or on behalf of a beneficiary claiming under a will or settlement-a transfer or dealing giving effect to the appointment of a new trustee or to any other transaction which in the opinion of the Registrar is not inimical to the interests of the beneficiaries; or

(d) a transfer or dealing which is expressed to be subject to the rights of the caveator; or

(e) a transfer or dealing the registration or entry of which is provided for in the caveat -

upon the expiration of thirty days after notice given by the Registrar to the caveator that a transfer or dealing has been lodged for registration, but in the case of a transfer or other dealing which does not dispose of the whole of the estate or interest of the registered proprietor in the land affected thereby the caveat shall lapse only to the extent necessary to permit the registration of the transfer or dealing.

(2) If before the expiration of the said period of thirty days or such further period as is specified in any order made under this subsection the caveator or his agent appears before the Court and gives such undertaking or security or lodges such sum as the Court considers sufficient to indemnify every person against any damage that may be sustained by reason of any disposition of the property being delayed, the Court may direct the Registrar to delay registering any dealing with the land for a further period specified in the order, or may make such other order (and in either case such order as to costs) as is just.

15 In this matter the notice from the registrar pursuant s.90(1) appears to have been posted on 21 April 2009. I accept that as the fact.

16 Thirty days from that date, namely 21 April 2009, is 21 May 2009. Within that period of 30 days, the plaintiff did not appear before the Court or give an undertaking or lodge security or obtain an order pursuant to s.90(2). It did not appear before the Court in fact until 29 May 2009 when the matter came on before Justice Cavanough. By that time the period under s.90(2) had expired.

17 In my opinion the 30 day period required by s.90(2) runs from the time when notice is sent by the Registrar rather than from the date when it is received by the caveator. In this respect I refer to DCT v Meredith.[1]

18 In any case, it is likely that the Registrar's notice was sent by ordinary post in which case would have arrived well before 29 April 2009. The address to which the document was posted was a business address in Mornington in Victoria. In the normal course of post, it would have been likely to have been delivered within two days at the outside.

19 As to the words which appear in s.90(2), "Or such further period as is specified in any order made under this subsection", these words, in my opinion, give the Court power to make a further order extending time under s.90(2) where an order has been made within the 30 day period and such order or an extension of it has not itself expired. In my opinion, those words do not permit the Court to ignore the 30 day period and make a first order after the 30 day period has expired pursuant to s.90(2).

20 The 30 day period specified in s.90(2) is critical to found the capacity for a stay. The matter was touched upon by Justice O'Bryan in Dralter Pty Ltd v Channel Land Company Pty Ltd[2] where his Honour considered an application under s.90(2). At 45.091 Justice O'Bryan said:

The Registrar of Titles gave notice to Dralter that the transfer and mortgage had been lodged on 15 September thus triggering the operation of section 90(1) of the Transfer of Land Act. Upon expiration of 30 days after notice, the caveat will lapse unless an order is made by the court pursuant to sub-section 2. Today, 14 October, is the last date for delaying the registration of the transfer and mortgage.

21 Mr Barber, who appeared for the first defendant, Crane, took me to the leading texts which deal with this matter. They are all to the same effect. An actual order must be obtained within the 30 day period specified in s.90(2), to found a stay.

22 In my opinion s.90(2) is the only resource of a caveator to whom notice is sent under s.90(1). The plaintiff is therefore out of time to obtain the order sought for the stay of registration.

23 However, the originating motion also seeks relief to determine the priority of the mortgages between the plaintiff and the first defendant pursuant to paragraph 5 of that motion. I am not satisfied that this claim for relief ought to be summarily dismissed.

24 I am prepared make the following orders which I will now pronounce.

1. The relief sought by the plaintiff in ground four of the plaintiff's originating motion dated 18 May 2009 and its summons of the same date is dismissed.
2. It is directed that the second defendant, the Registrar of Titles, proceed to register dealing number AG 456246X lodged by the first defendant against Certificate of Title volume 7208 folio 435.
3. There being both no proper basis for the relief sought in ground 4 of the originating motion and the accompanying summons because it is barred by section 90(2) of the Transfer of Land Act, I order that the plaintiff pay the first respondent's costs of this application.

[1] [2007] NSWCA 354; (2007) 245 ALR 150 at paras [58]-[76] but particularly at [75].

[2] 1998 Victorian Conveyancing Reports 54.324.