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[2017] ACTSC 339
General information, not legal advice.
Supreme Court of the ACT
2017-11-02
Mossop J
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
The Owners of Units Plan 932 v De Andrade (nee Marhaba) (No 2)
REAL PROPERTY - CAVEATS - Lodgement of a caveat following a sale and seizure order - property seizure following unpaid judgment debt - removal of caveat from register pursuant to s 105(2)(b) of the Land Titles Act
Land Titles Act 1925 (ACT), ss 105, 105(2)(b), 105(2)(c), 105(3)
The Owners of Units Plan 932 (Enforcement Creditor)
Sheriff of the ACT Supreme Court (Enforcement Officer)
Roubi De Andrade (nee Marhaba) (Enforcement Debtor)
S Kibbey (Enforcement Creditor and Enforcement Officer)
1. Before me is an Application in Proceeding which came before me as duty judge seeking orders under s 105 of the Land Titles Act 1925 (ACT). The active parties in the proceedings are the Sheriff of the ACT Supreme Court, the Owners of Units Plan 932, Roubi De Andrade, who is also known as Roubi Marhaba, and Rabab Marhaba, her mother. The Registrar-General has submitted to the orders of the Court.
2. Ms De Andrade is the Enforcement Debtor pursuant to a judgment of the ACT Magistrates Court, which was filed in the Supreme Court. On 11 April 2017, a seizure and sale order was made and the amount then owing was $67,052.51. The order made identified the property which was authorised to be seized and sold as including Unit 112 in the Owners Plan 932.
3. The property was marketed for sale and due to be sold at auction on 30 September 2017. On 29 September 2017 an application was made by Ms De Andrade to Burns J for a stay of the seizure and sale order. That application was dismissed.
4. The unit was sold at auction for the amount of $435,500. It was sold to a company which is associated with the owner of the other units in the Units Plan. Ms De Andrade and other people bid at the auction. The reserve price for the auction was set at $210,000.
5. The contract subsequently entered into specifies the date for settlement as within 30 days of 30 September 2017, that is by 30 October 2017. The evidence discloses that the parties are, save for the matters referred to below, ready to settle the contract.
6. Ms De Andrade then lodged a caveat over the property which asserted that her interest in the land was: "No authorise [sic] sale by me the legal owner - Prevention of sale without my approval or authority."
7. The matter first came before me as duty judge on 27 October 2017 at which time the Sheriff and the enforcement creditor sought orders in relation to the removal of that caveat. On that occasion, a solicitor, Mr Feeney, helpfully appeared as amicus curiae articulating the interests of Ms De Andrade. By the conclusion of the proceedings
Ms De Andrade had agreed to execute a withdrawal of the caveat and such a document was in fact executed. However shortly after the proceedings were concluded, a further caveat was filed. This document was requisitioned by the Registrar-General but nevertheless the filing of the document was recorded on the title. The caveat purports to be filed by Ms Marhaba, the mother of Ms De Andrade. The interest claimed is as follows:
I, RABAB MARHABA, am the true owner of section 1 block 6 unit 112, I do not authorise any sale/exchange on my property without my approval.
8. Ms Marhaba had not been involved in the proceedings prior to that date. When the matter was before me yesterday, 1 November 2017, I ordered that she should be served with the notice of any amended application to have that caveat removed and restrain her from lodging a further caveat prior to the settlement of contract.
9. When the matter was again before me this morning, both Ms De Andrade and Ms Marhaba appeared. Ms De Andrade spoke on behalf of both herself and her mother. She sought an adjournment of the proceedings. She submitted that the unit was in fact owned by her mother and that she wished to have an opportunity to prove that. She said that there might be some aspect of the original transfer that was filled out incorrectly.
10. This is clearly inconsistent with the position articulated in the earlier caveat
Ms De Andrade filed in which she asserted that she was the owner. It is also inconsistent with the position that she adopted in the proceedings before Burns J which were premised upon the fact that she was the owner of the unit and the judgment debtor in the proceedings.
11. It is clear that as the register currently stands Ms De Andrade is the registered owner of the property. If there is a claim that in fact the beneficial interest is held by her mother, that is a matter which need not prevent the sale of the property and may be agitated between her and her mother if, in fact, there is any controversy.
12. As a consequence, in my view, the application for an adjournment should be refused and I refuse it.
13. The difficulty faced by the Sheriff and the incoming purchaser is that, having regard to the previous history of the lodgement of caveats, there is at least the potential that the caveat which has been lodged but requisitioned will be registered or that a further caveat will be registered prior to the lodging of the transfer to the incoming owner for registration. This has led to understandable reluctance on the part of the incoming owner to settle the contract. The orders sought by the Sheriff are orders removing the most recent caveat on the title, or if it has not been registered by the time application is determined, an order that the Registrar-General remove from the title any reference to the caveat and an order that the Registrar-General not register on the title of the unit any caveat lodged by Ms De Andrade or Ms Marhaba. As an alternative to the last order, an order is sought that there be such a restraint until the registration of the transfer of title that was effected in accordance with the seizure and sale order of the Supreme Court dated 11 April 2017.
(1) Upon the receipt of a caveat, the registrar-general shall notify the receipt to the person against whose application to be registered as proprietor, or, as the case may be, to the registered proprietor against whose title to deal with land under this Act the caveat has been lodged.
(a) is an applicant or registered proprietor referred to in subsection (1);
(c) has an interest in the land under a memorandum of transfer or other instrument
registrable under this Act; may apply to the court, on notice to the caveator, for an
(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.
(4) In this section: court includes the Family Court of Australia and any other court having
jurisdiction under the Family Law Act 1975 (Cwlth).
15. The enforcement creditor has standing to bring the application for removal of the caveat under s 105(2)(b) of the Land Titles Act because the enforcement creditor has an interest in the land under an instrument registrable under the Land Titles Act. That interest is the statutory charge in its favour registered on the title.
16. It is not necessary to determine for the purposes of this application precisely the status of the enforcement officer and the question of the enforcement officer's standing to bring the application for removal. Although the seizure and sale orders are registered on the title, it is unnecessary to determine precisely the nature of the interest in the land that was given to the Sheriff as a result: see s 105(2)(b)-(c) of the Land Titles Act.
17. In the unusual circumstances of the present case, I consider it appropriate to make orders under s 105(3) substantially to the effect of the orders sought by the enforcement creditor and the Sheriff. Having regard to the existence of the seizure and sale order and the refusal of an application to stay that order, the absence of any other application in relation to the orders of the Court and the existence of a sale which is due to be settled, the lodgement of caveat by Ms De Andrade amounted to an abuse of the process under the Land Titles Act. Further, I consider that the existence of an alleged beneficial interest in the property by Ms Marhaba is not a matter which should be permitted to hold up the settlement of the sale having regard to the existence of orders of the Court authorising that sale. If there is in fact any genuine dispute as between Ms De Andrade and her mother, which I doubt, then any such dispute may be resolved by an appropriate application to the Court.
18. I will therefore make orders to the effect of orders 1, 2, 4 and 5 set out in the Amended Application in Proceeding, filed in Court on 2 November 2017. I will however redraft orders 1 and 2 so that they can appropriately accommodate the uncertainty as to whether or not the most recent caveat has, at the time these orders are made, been accepted and registered, as opposed to merely being noted on the register.
I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.
The Owners of Units Plan 932
De Andrade