104 Boyce Road Pty Ltd v Nicolas James Pty Ltd
[2009] NSWSC 726
•22 June 2009
NEW SOUTH WALES SUPREME COURT
CITATION:
104 Boyce Road Pty Ltd v Nicolas James Pty Ltd [2009] NSWSC 726
JURISDICTION:
Equity
FILE NUMBER(S):
3321/09
HEARING DATE(S):
22nd June 2009
JUDGMENT DATE:
22 June 2009
EX TEMPORE DATE:
22 June 2009
PARTIES:
104 Boyce Road Pty Limited (Plaintiff)
King James Enterprises Pty Limited (Defendant)
JUDGMENT OF:
Slattery J
LOWER COURT JURISDICTION:
Not Applicable
LOWER COURT FILE NUMBER(S):
Not Applicable
LOWER COURT JUDICIAL OFFICER:
Not Applicable
COUNSEL:
A Giurtalis (Plaintiff)
Nicholas James (Self Represented Defendant)
SOLICITORS:
Salim Rutherford Lawyers (Plaintiff)
Nicholas James (Self Represented Defendant)
CATCHWORDS:
Caveator entitled to payment of fee from the proceeds of sale under a marketing agreeement
No charge over property
No caveatable interest in property
LEGISLATION CITED:
CATEGORY:
Principal judgment
CASES CITED:
Epple v Wilson (1972) VR 440
Shepherd v Houston (1927) SASR 144
TEXTS CITED:
DECISION:
Declaration that the defendant has no caveatable interest in the subject property
JUDGMENT:
- 1 -
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
SLATTERY J
22 JUNE 2009
3321/09 104 Boyce Road Pty Ltd v Nicolas James Pty Ltd
JUDGMENT
HIS HONOUR: These proceedings are brought by 104 Boyce Road Pty Limited against King James Enterprises Pty Ltd. 104 Boyce Road Pty Limited will be referred to henceforth as “Boyce Road” and King James Enterprises Pty Limited, as “King James Enterprises.”
In its summons dated 19 June 2009, Boyce Road seeks a declaration that King James Enterprises, has no caveatable interest in the property, described in folio identifier 16/SP81935 in Boyce Road, Maroubra (“in the subject property”) and a further declaration that registered caveat AE759474Q lodged over the subject property is null, void or of no effect.
These proceedings came on for hearing this morning and after a brief time allowed to the parties, I was informed by both sides that the proceedings had settled. When I was first informed of that about mid-morning, I was told that it had settled on the basis that there was agreement to withdraw the caveat but that there was still an issue between the parties as to costs. The difference between the parties being that the plaintiff was seeking costs against the defendant and the defendant was resisting that course. After I had dealt with other matters in the list, and returned to this matter, it was made clear to the court that the plaintiff was by then prepared to take the position on costs which had been previously stated by the defendant, namely, that the parties would by agreement each bear its own costs of these proceedings.
With that in mind, I asked Mr Giurtalis, counsel for the plaintiff, to prepare a set of short minutes of order reflecting the declaration and orders which were agreed. A document was prepared and was signed by the solicitor for the plaintiff and counsel for the plaintiff and by Mr Nicolas James, a director of the defendant. And I understand Mr James signs it for and on behalf of the defendant.
I have given Mr James leave to appear today on behalf of the defendant notwithstanding that he is not a legal practitioner. I did that on the basis that the proceedings looked like they were going to resolve by agreement today and that it is convenient for Mr James as an agent of the defendant to execute the orders reflecting that agreement so the matter can be disposed of justly, quickly and cheaply without the need for any further delay or the intervention of a solicitor on behalf of the defendant.
The short minutes of order which I will initial and date today and place with the Court papers, provide for a declaration that the defendant has no caveatable interest in the subject property. A second declaration was sought, but after discussion between myself and counsel for the plaintiff, the plaintiff has recognised that there is little need for that declaration. For the reasons I will state in a moment, I will make declaration 1 in the short minutes of order.
The Court has looked at the evidence to see whether or not the making of that declaration is justified in the circumstances. Notwithstanding the fact that the parties have agreed upon the making of the declaration, the Court must satisfy itself that there is a proper basis to do so. For that purpose, the affidavit of Francis Joseph Back has been read in the proceedings. Mr Back is the solicitor acting for the plaintiff in respect of the sale of individual units in a 26 residential unit and 7 commercial unit strata title development of which the subject property was a part. Mr Back was directly involved in the conveyancing associated with a contract for sale of the subject property. Completion of that contract was arranged for last Thursday, 18 June 2009. In the preliminary settlement searches that were done it emerged that caveat No. AE759474Q had been lodged against the title of the property by the defendant. A copy of the caveat is annexure D to Mr Back's affidavit.
The facts stated in schedule 1 of the caveat are:
"The nature of the estate or interest claimed is an equitable interest. The facts stated to justify the equitable interest are - the caveator has entered into a marketing agreement with the registered proprietor in relation to the sale of the property and other properties owned by the registered proprietor entitling the caveator to a fee on settlement."
There is nothing in this statement to indicate that the right to payment of the fee is claimed to be secured by a charge over the property.
Mr Giurtalis submits to the Court that an agreement of that kind, namely, one that merely entitles the caveator to fees to be taken out of the proceeds of sale upon settlement is not sufficient to create a caveatable interest. He has referred me to Epple v Wilson (1972) VR 440 which is authority for the proposition that an interest in the proceeds of sale of land is not “an estate or interest in land” sufficient to support a caveat. It is well established that the right to net profits from the sale of land does not establish a caveatable interest: Shepherd v Houston (1927) SASR 144. In those circumstances, there is a proper basis for the Court to make declaration 1 as sought and I so make it.
Returning to the short minutes of order, I make order 3 in the short minutes. I do not make declaration 2 for the reasons indicated previously. I do not make order 4 which will be deleted. I will re-number and initial the orders so that they make proper numerical sense with those deletions. The old order 3 will become order 2. The old agreement 5 will become 3 and the old order 6 will become order 4.
Returning to 3, I note the agreement that each party is to bear its own costs of this application. It only says “this application” Mr Giurtalis but it is really an agreement in respect of the costs of these proceedings isn’t it?
GIURTALIS: That's correct, yes.
HIS HONOUR: And I will ask the parties to initial that change. In fact I will just add it myself. “Each party is to bear their own costs of this application and these proceedings.”
I will hand these short minutes down. If the parties would also initial them after I adjourn and hand them to my Associate. What I have done Mr Giurtalis is make sure that the costs agreement is as comprehensive as I understand the parties have described it to me. Then I also make order 4 and add that these orders may be entered forthwith. I have given that to my Associate and it can be handed down to the parties. If that is satisfactory that further change in my handwriting should be executed.
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LAST UPDATED:
30 July 2009
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