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Bellissimo v JCL Investments Pty Ltd

Bellissimo v JCL Investments Pty Ltd

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CITATION: Bellissimo v JCL Investments Pty Ltd [2009] NSWSC 1260

HEARING DATE(S): 2 November 2009

JUDGMENT DATE :
2 November 2009

JURISDICTION: Equity

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 2 November 2009

DECISION: 1. Order that the plaintiff remove caveat number AD5289XXX forthwith; 2. Order that the proceedings be otherwise dismissed.

CATCHWORDS: CAVEAT – application for extension of caveat – whether interest in land claimed by caveat is adequately described – whether agreement granting authority to lodge caveat by implication confers such an interest in land as will sustain caveat – if agreement had been intended to create charge over land that charge would be unenforceable as mortgage duty has not been paid under Duties Act 1997 – form of caveat defective – order that caveat be removed

LEGISLATION CITED: Real Property Act 1900 (NSW)
Duties Act 1997 (NSW)

CASES CITED: Hanson Construction Materials Pty Ltd v Vimwise Civil Engineering Pty Ltd [2005] NSWSC 880; (2005) 12 BPR 23,355
Warden v Mortgage House No 1 Pty Ltd [2006] NSWSC 1462; (2006) 13 BPR 24,375
Troncone v Aliperti (1994) 6 BPR 13,291
Coleman v Bone (1996) 9 BPR 16,235
Nudd v Official Trustee in Bankruptcy [2002] NSWSC 399; (2002) 11 BPR 20,163
Redglove Projects Pty Ltd v Ngunnawal Local Aboriginal Land Council [2004] NSWSC 880; (2004) 12 BPR 22,319
Iaconis v Lazar [2007] NSWSC 1103; (2007) 13 BPR 24,937
Express Loans & Finance Pty Ltd v Hunter [2004] NSWSC 142; (2004) 11 BPR 21,451
Boral Recycling v Wake [2009] NSWSC 712
Wu v Dardaneliotou [2008] NSWSC 1319

PARTIES: Plaintiff: Francesco Bellissimo
1st Defendant: JCL Investments Pty Ltd
2nd Defendant: The Registrar General, Department of Lands, Land and Property Information Division

FILE NUMBER(S): SC 4130/09

COUNSEL: Plaintiff: S Milanovic
Defendant: n/a

SOLICITORS: Plaintiff: Bilias & Associates
Defendants: n/a

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Monday, 2 November 2009

4130/09 Francesco Bellissimo v JCL Investments Pty Ltd & 1 Or

JUDGMENT

: The plaintiff commenced these proceedings by summons on 14 August 2009. The whole of the relief sought in the summons is:

“ 1. An order that the operation of caveat No AD528XXX be extended until further order of the court.

2. A direction [that] the Registrar settle and sign a minute of this order forthwith.

3. Such further or other order as the court may deem fit. “

2 On 17 August 2009 Rein J directed that the summons be returnable on 25 August 2009. On that day His Honour made certain orders which, as they appear on the associate's record of proceedings and on the formal orders entered and sealed by the Deputy Registrar, included orders that the operation of the caveat be extended until further order of the court; that the matter be listed before the duty judge on 2 November 2009; that the solicitors for the plaintiff notify the first defendant of the orders and provide a…

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: [2009] NSWSC 1260
Decision Date: 2 November 2009

CaseChat Overview and Summary

The case involved Bellissimo as the applicant seeking an extension of a caveat and JCL Investments Pty Ltd as the respondent opposing the extension. The dispute centred around the validity of the caveat lodged by the applicant over a property, and whether the applicant had a sufficient interest in the land to sustain the caveat. The matter was heard in the Supreme Court of Queensland.

The central legal issues before the court were whether the agreement between the parties impliedly granted the applicant an interest in the land sufficient to support the caveat, and if so, whether such an interest would constitute an enforceable charge or mortgage over the land. Additionally, the court had to determine whether the form of the caveat was defective and if it should be removed.

The court held that the agreement did not implyly grant the applicant an interest in the land sufficient to sustain the caveat. Furthermore, the court found that even if the agreement had been intended to create a charge over the land, it would be unenforceable due to the failure to pay the required mortgage duty under the Duties Act 1997. The form of the caveat was also found to be defective, leading to the conclusion that the caveat should be removed.

The final orders of the court were that the application for an extension of the caveat be dismissed, and the caveat be removed from the register of titles. The court found that the applicant had not demonstrated a sufficient interest in the land to sustain the caveat, and the form of the caveat was defective.

Orders