Allen Taylor & Co Pty Ltd v Harrison - [2010] NSWSC 1021

CITATION: Allen Taylor & Company Pty Ltd trading as Boral Timber & Ors v Norman Leslie Harrison [2010] NSWSC 1021
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 8 September 2010

JUDGMENT OF: Slattery J at 1

EX TEMPORE JUDGMENT DATE: 9 September 2010

DECISION: 1. The plaintiffs have leave to file in Court the Amended Summons dated 7 September 2010.
2. The operation of caveat number AE482747 be extended until further order.
3. The operation of caveat number AE482743 be extended until further order.
4. The plaintiffs’ costs of and incidental to the hearing of 8 and 9 September 2010 be reserved to abide by the final result of these proceedings.
5. Liberty to restore on 2 day’s written notice before Slattery.
6. These Orders be entered forthwith.
The Court notes:
1. The agreement of the parties to expedite the District Court proceedings as set out in the minute annexed to this Order.
2 That the parties:
2.1 will in good faith and use their best endeavours to agree the proper deductions and adjustments on completion of the sale of the property the subject of Orders 1 and 2; and
2.2 if such agreement can be reached, the plaintiffs will provide a withdrawal of the caveats in Orders 1 and 2 in return for a bank cheque made payable to the Supreme Court of New South Wales.
3. The Defendant’s intention to apply to the Court for the release of $55000 to pay his costs to date of the District Court proceedings.

CATCHWORDS: REAL PROPERTY - Torrens title - caveats against dealings - application for extension of caveat - caveator supplies credit to caveatee’s company - uncertainty in description of charge in guarantee alleged - whether caveatable interest - charge arguably created - form of caveat alleged to be defective due to misidentification of caveatee - whether caveat requires amendment - whether deficiencies in caveat can be disregarded under Real Property Act s74L - deficiency not fatal to the validity of caveat - deficiency disregarded - whether caveat interferes with interests of both joint tenants as registered proprietors of the subject property - only one registered proprietor joined as a party - no interference with interest or other joint tenant - caveat may be extended without joining other joint tenant - caveat extended.

LEGISLATION CITED: Real Property Act 1900, ss 74F, 74K, 74L
Real Property Regulation 2008, Clause 7, Schedule 3

CATEGORY: Procedural and other rulings

CASES CITED: Allen’s Asphalt Pty Ltd v SPM Group Pty Ltd [2010] 1 Qd R 202
Andrews v Wilcox [2008] NSWSC 280
Bridge Wholesale Acceptance Corporation (Australia) Ltd v Burnard (1992) 27 NSWLR 415
Cini v Pets Paradise Franschising (SA) Pty Ltd (2008) 102 SASR 177
Gibson v Co-ordinated Building Services Pty Ltd (1989) 4 BPR 9630
Hedley v Roberts [1977] VR 282
Leros Pty Limited v Terara Pty Limited (1992) 174 CLR 407
Ron Medich Properties Pty Ltd v McGuirk…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWSC 1021
Decision Date: 9 September 2010

CaseChat Overview and Summary

In the case of Allen Taylor & Co Pty Ltd v Harrison, the dispute involved an application for the extension of a caveat against dealings with a property registered in the names of two joint tenants. The caveat was lodged by Allen Taylor & Co Pty Ltd, and the application was made in the Federal Circuit and Family Court of Australia. The primary issue before the court was whether the caveat, which was allegedly defective due to misidentification of the caveatee, could be extended without amending the caveat to correctly identify the party against whom it was lodged.

The court examined the nature of the interest held by the caveator, Allen Taylor & Co Pty Ltd, and whether the uncertainty in the description of the charge in the guarantee was sufficient to constitute a caveatable interest. The court determined that the charge was arguably created and that the form of the caveat was defective due to the misidentification of the caveatee. However, the court found that the deficiencies in the caveat did not render it invalid and could be disregarded under the relevant statutory provision. The court further considered whether the caveat interfered with the interests of both joint tenants, given that only one registered proprietor was joined as a party. The court concluded that the interest of the unjoined joint tenant was not interfered with and that the caveat could be extended without requiring the other joint tenant to be joined as a party.

Consequently, the court extended the caveat lodged by Allen Taylor & Co Pty Ltd. The court found that the deficiencies in the form of the caveat did not prevent it from being effective, and the interests of the unjoined joint tenant were not prejudiced by the extension of the caveat. The final orders of the court allowed the extension of the caveat without requiring any amendment to the form of the caveat or the joining of the other joint tenant as a party.

Orders