Berhero Pty Ltd v Hinds

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Berhero Pty Ltd v Hinds

Citation:

[2019] ACTSC 378

Hearing Date:

31 May 2019

DecisionDate:

31 May 2019

Before:

Burns ACJ

Decision:

See [21]

Catchwords:

CIVIL LAW – APPLICATION IN PROCEEDING – application to extend caveat – whether serious issue to be tried – whether balance of convenience favours extension of caveat – whether applicant required to give undertaking as to damages

Legislation Cited:

Land Titles Act 1925 (ACT), s 108

Parties:

Berhero Pty Ltd (Applicant)

Paul Francis Hinds (First Respondent)

Melissa Sian Hinds (Second Respondent)

Registrar-General of Land Titles of the Australian Capital Territory (Third Respondent)

Representation:

Counsel

W Buckland (Applicant)

P Christensen (First and Second Respondents)

Solicitors

Bradley Allen Love Lawyers (Applicant)

P Christensen (First and Second Respondents)

File Number:

SC 166 of 2019

BURNS ACJ:

1. These proceedings were commenced on 8 April 2019 by an Originating Application in which the applicant, Berhero Pty Ltd, sought orders that caveats lodged by it over land, which is set out in the Application, be extended until further order of the Court. It also sought orders that the third respondent, being the Registrar-General of Land Titles of the Australian Capital Territory, be restrained from registering any dealing in respect of those properties. 

1. The grounds of the Application were that, on 6 November 2013, the applicant and the first respondent, Paul Francis Hinds, in his personal capacity and as a director of a company to be incorporated at a later time to act as a trustee of Ripley Valley Unit Trust, entered into a written Loan Term Sheet and a written Costs Agreement. 

1. It was alleged that the Loan Term Sheet and the Costs Agreement contained the terms for the applicant's engagement as the first respondent's exclusive finance broker for the procurement of a substantial loan facility, the purpose of which was to assist with the acquisition of property. It was further alleged that the terms of the Loan Term Sheet and the Costs Agreement provided that a Processing Fee of $22,000 was payable on execution of the Loan Term Sheet and the Costs Agreement. A Brokerage Fee of
   1.75 per cent of the total loan amount was payable once a loan proposal was issued in the terms of the Loan Term Sheet.

1. It was further alleged that the Costs Agreement, at clause 5, provided a charge to the applicant over any or all of the first respondent's properties. Such charge prevented any dealings on the title of those properties until the fees owed to the applicant, including any interest owed on the costs owed, was paid in full. 

1. It was further alleged that the first respondent nominated RV Developments Australia Pty Ltd (RVD) as trustee for the RV Developments Australia Unit Trust, to be the borrowing entity under the facility. The first respondent was a sole director of RVD until
   11 September 2017 and remains its sole shareholder. On 22 January 2014, the applicant received an Expression Of Interest from ANZ…