Cappello v HomeBuilding Pty Ltd - [2023] NSWCA 61

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Cappello v HomeBuilding Pty Ltd [2023] NSWCA 61
Hearing dates: 28 March 2023
Date of orders: 28 March 2023
Decision date: 28 March 2023
Before: Basten AJA
Decision:
(1) Pursuant to s 74O(2a) of the Real Property Act 1900, grant leave to the respondents to lodge a further caveat on lot 10/1247934, land known as 39 Empire Street, Haberfield, New South Wales in the terms of the caveat which was lodged on 1 March 2021, subject to the amendment of the clause referring to the lack of requirement to seek leave being varied so as to refer to the fact that leave is required but has been granted by the Court today.
(2) Otherwise dismiss the notice of motion filed 6 February 2023.
(3) Order that the costs of the motion be costs in the proceedings in this Court.

Catchwords:
PROCEDURE – application for leave to lodge caveat – interest in land created under Home Building Act 1989 (NSW), s 7D – leave required where earlier caveat allowed to lapse – attempt to prevent earlier caveat lapsing – no significant delay – interest in land based on assessed costs – judicial review of judgment dismissing appeal from costs assessment – limited prospects of success

Legislation Cited:
Home Building Act 1989 (NSW), s 7D
Real Property Act 1900 (NSW), ss 56, 74O
Supreme Court Act1970 (NSW), s 69

Category: Procedural rulings
Parties: Rosario Cappello (First Applicant)
Maria Cappello (Second Applicant)
Homebuilding Pty Ltd (Respondent)
Representation:
Counsel:
DP O’Connor (Respondent)
Solicitors:
Adam & Partners Lawyers (Respondent)

File Number(s): 2022/386060
Publication restriction: Nil
Decision under review

Court or tribunal:

District Court

Date of Decision:

9 December 2022

Before:

Gibson DCJ

File Number(s):

2022/00106476

JUDGMENT

BASTEN AJ: This matter comes before the Court of Appeal on an interlocutory application where a summons for judicial review was filed on 6 February 2023. The summons was originally filed in the Common Law Division and has been transferred to this Court. That transfer was appropriate because the matter engaging the supervisory jurisdiction of the Court was a judgment of Judge Gibson in the District Court given on 9 December 2022. However, the interlocutory application could conveniently have been dealt with in the Division.
The notice of motion filed by the respondent to the summons seeks a number of orders of which only one is pursued today. The order sought is a grant of leave pursuant to s 74O of the Real Property Act 1900 (NSW), permitting the respondent to lodge a further caveat over premises owned by the applicants for relief in this Court. The need for leave arises because a caveat originally filed on 1 March 2021 lapsed pursuant to a lapsing notice given in October 2022, and taking effect on 2 November 2022.
The interest on which the caveat is sought derives from an entitlement under cl 27 of a home building contract entered into in 2017 between the applicant and the…

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 Cappello v HomeBuilding Pty Ltd

Details

AGLC: Cappello v HomeBuilding Pty Ltd [2023] NSWCA 61
Case: [2023] NSWCA 61
Decision Date: 28 March 2023

CaseChat Overview and Summary

In *Cappello v HomeBuilding Pty Ltd*, the New South Wales Court of Appeal considered an application for leave to lodge a further caveat over land. The applicant sought to prevent the respondents from lodging a second caveat after an earlier one had lapsed. The dispute arose from an interest in land purportedly created under section 7D of the *Home Building Act 1989* (NSW), which related to assessed costs.

The primary legal issue before the Court was whether to grant leave to the respondents to lodge a further caveat, given that an earlier caveat had been allowed to lapse. This required the Court to consider the circumstances under which a second caveat could be permitted, particularly where the initial caveat had expired. The Court also had to assess the prospects of success of the underlying claim that gave rise to the interest in land, which was based on an appeal from a judgment dismissing an appeal from a costs assessment.

Basten AJA reasoned that while leave was generally required to lodge a further caveat after an earlier one had lapsed, the circumstances here did not warrant refusing leave. The Court noted there was no significant delay in the application and that the respondents had an arguable, albeit potentially limited, prospect of success in their underlying judicial review proceedings concerning the costs assessment. Consequently, the Court granted leave to the respondents to lodge a further caveat, with a specific amendment to reflect that leave had been granted by the Court. The notice of motion was otherwise dismissed, with costs of the motion to be costs in the proceedings.

Orders

Orders of the court

(1) Pursuant to s 74O(2a) of the Real Property Act 1900, grant leave to the respondents to lodge a further caveat on lot 10/1247934, land known as 39 Empire Street, Haberfield, New South Wales in the terms of the caveat which was lodged on 1 March 2021, subject to the amendment of the clause referring to the lack of requirement to seek leave being varied so as to refer to the fact that leave is required but has been granted by the Court today.

(2) Otherwise dismiss the notice of motion filed 6 February 2023.

(3) Order that the costs of the motion be costs in the proceedings in this Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Cappello v HomeBuilding Pty Ltd [2023] NSWCA 61
Hearing dates:	28 March 2023
Date of orders:	28 March 2023
Decision date:	28 March 2023
Before:	Basten AJA
Decision:	(1) Pursuant to s 74O(2a) of the Real Property Act 1900, grant leave to the respondents to lodge a further caveat on lot 10/1247934, land known as 39 Empire Street, Haberfield, New South Wales in the terms of the caveat which was lodged on 1 March 2021, subject to the amendment of the clause referring to the lack of requirement to seek leave being varied so as to refer to the fact that leave is required but has been granted by the Court today. (2) Otherwise dismiss the notice of motion filed 6 February 2023. (3) Order that the costs of the motion be costs in the proceedings in this Court.
Catchwords:	PROCEDURE – application for leave to lodge caveat – interest in land created under Home Building Act 1989 (NSW), s 7D – leave required where earlier caveat allowed to lapse – attempt to prevent earlier caveat lapsing – no significant delay – interest in land based on assessed costs – judicial review of judgment dismissing appeal from costs assessment – limited prospects of success
Legislation Cited:	Home Building Act 1989 (NSW), s 7D Real Property Act 1900 (NSW), ss 56, 74O Supreme Court Act1970 (NSW), s 69
Category:	Procedural rulings
Parties:	Rosario Cappello (First Applicant) Maria Cappello (Second Applicant) Homebuilding Pty Ltd (Respondent)
Representation:	Counsel: DP O’Connor (Respondent) Solicitors: Adam & Partners Lawyers (Respondent)
File Number(s):	2022/386060
Publication restriction:	Nil
Decision under review	Court or tribunal: District Court Date of Decision: 9 December 2022 Before: Gibson DCJ File Number(s): 2022/00106476