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Brose v Slade

Brose v Slade

Case [2022] NSWSC 1785 23 December 2022

Caveats

Serious Question to be Tried

Undertaking as to Damages

Property Law

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Supreme Court

New South Wales

Medium Neutral Citation: Brose v Slade [2022] NSWSC 1785
Hearing dates: 14 December 2022; further written submissions 15 and 16 December 2022
Date of orders: 23 December 2022
Decision date: 23 December 2022
Jurisdiction: Equity - Duty List
Before: Kunc J
Decision:
Two caveats in issue. One caveat extended. Leave granted to file a fresh caveat in relation to other caveat. Secured undertaking as to damages required.

Catchwords:
LAND LAW — Caveats — Extension of operation of caveat — Balance of convenience — Serious question to be tried — Undertaking as to damages
LAND LAW — Caveats — Formal requirements — Requirement to specify particulars of estate or interest claimed — Where dropdown boxes on PEXA system do not permit interest to be described accurately — Whether description due to requirements of PEXA system a failure to comply with legislation which can be disregarded — Recommendation that PEXA system be changed to provide options which better describe trust claims — Real Property Act, 1900 (NSW), s 74L

Legislation Cited:
Real Property Act, 1900 (NSW)
Real Property Regulation 2019 (NSW)
NSW Conveyancing Rules

Cases Cited:
Australian Security Estates Pty Ltd v Bluecrest Holdings Pty Ltd (1999) 9 BPR 17, 533; [1999] NSWSC 524
Bale v Kimberley Development Pty Ltd [2022] NSWSC 820
COMSERV (NO 210) PTY LTD v Robert Ristevski [2022] NSWSC 821

Category: Procedural rulings
Parties: Kellie Lisa Brose (First Plaintiff)
Garreth Owen Brose (Second Plaintiff)
Bruce Roland Slade (First Defendant)
Donna Maree Slade (Second Defendant)
IJAAMOTT Pty Ltd (Third Defendant)
Representation: Counsel:
J Mack (Plaintiffs)
B F Katekar SC with S Hoare (Defendants)
Solicitors:
Walsh & Blair Lawyers (Plaintiffs)
Bradley Allen Love Lawyers (Defendants)

File Number(s): 2022/297484
Publication restriction: Nil

Judgment

Summary

This judgment resolves an application brought under s 74K of the Real Property Act 1900 (NSW) (the Act) to extend two caveats (the Caveats). The Caveats have been lodged in the course of a farming family’s intergenerational succession planning dispute. Without disrespect, I shall refer to the parties by their given names.
The first plaintiff (Kellie) and the second plaintiff (Garreth) are married. They are, respectively, the daughter and son-in-law of the first defendant (Bruce) and the second defendant (Donna). The third defendant (IJAAMOTT) is a company controlled by Bruce and Donna, and is the trustee of their self-managed superannuation fund.
The present dispute concerns five blocks of land (the Land) which formed part of a farming enterprise originally operated by Bruce and Donna in a partnership known as the Slade Pastoral Co (the Partnership) near West Wyalong. Bruce is the registered proprietor of three of those blocks: “Ostenleigh”, “Ozone Park” and “The Reserve” (the Slade Land). They are subject to a caveat lodged by Kellie and Garreth (the Slade Land Caveat). IJAAMOTT is the registered proprietor of the other two blocks: “Gilgowrie” and “Misery”. They are also subject to…

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.

Continue reading Brose v Slade

Details

AGLC: Brose v Slade [2022] NSWSC 1785
Case: [2022] NSWSC 1785
Decision Date: 23 December 2022

CaseChat Overview and Summary

The case of Brose v Slade involved a dispute over the operation of a caveat lodged against a property. The property in question was subject to a trust, and the caveat was intended to protect the interests of the beneficiaries under that trust. The case was heard in the Supreme Court of New South Wales. The primary issue before the court was whether the caveat was validly lodged, particularly in light of the requirements of the Real Property Act 1900 (NSW) and the operation of the PEXA system for property registration.

The court needed to determine whether the failure to accurately describe the interest claimed in the caveat due to the limitations of the PEXA system constituted a failure to comply with the statutory requirements. Specifically, the court had to consider whether the statutory requirement to specify particulars of the estate or interest claimed was satisfied when the PEXA system did not permit an accurate description of a trust interest. Additionally, the court examined whether this failure could be disregarded under the relevant legislation, and if so, under what circumstances.

The court found that the statutory requirement to specify particulars of the estate or interest claimed was indeed not met due to the limitations of the PEXA system. However, the court held that this failure could be disregarded under the provisions of the Real Property Act 1900 (NSW). The court reasoned that the PEXA system's limitations were a matter of the system's design and not a failure on the part of the caveator. The court also noted that there was a serious question to be tried regarding the validity of the caveat and the balance of convenience favoured maintaining the caveat. The court concluded that the caveat was validly lodged despite the technical non-compliance with the statutory requirements.

The court further recommended that the PEXA system be amended to provide better options for describing trust claims, thereby facilitating compliance with the statutory requirements. The court did not make any final orders regarding the property or the parties involved, as the primary focus was on the validity of the caveat and the statutory compliance issues.

Orders