Chan v Grimston (No 2) - [2016] NSWSC 423

Supreme Court

New South Wales

Medium Neutral Citation: Chan v Grimston (No 2) [2016] NSWSC 423
Hearing dates: 5 April 2016
Date of orders: 05 April 2016
Decision date: 05 April 2016
Jurisdiction: Equity - Duty List
Before: Kunc J
Decision:
Application to vary order to withdraw caveat dismissed

Catchwords: REAL PROPERTY – Torrens system – Caveats – Construction of contract for sale – No caveatable interest
Cases Cited: Chan v Grimston [2016] NSWSC 367
Category: Procedural and other rulings
Parties:
Tai Huy Chan (Plaintiff)
Camcuc Tran (Second plaintiff)
Peter Grimston (First defendant)
Lynette Joy Grimston (Second defendant)
Representation:
Solicitors:
Le Vaccaro Lawyers (Plaintiffs)
Marsdens Law Group (Defendants)
Barristers:
D. Brezniak (Plaintiffs)
M. Bennett (Defendants)

File Number(s): 2016/96255
Publication restriction: No

EX TEMPORE Judgment

This matter first came before me in the Duty List on 29 and 30 March 2016. What happened on those days is set out in my judgment Chan v Grimston [2016] NSWSC 367 (the “first judgment"). These reasons should be read in conjunction with the first judgment and terms defined in the first judgment have the same meaning in these reasons.
The proceedings have returned before me today for the purpose set out in paragraph [23] of the first judgment. That purpose is for the plaintiffs to satisfy me that they had an interest in the subject property of the kind that would have justified an extension of the Caveat. Mr D Brezniak of Counsel, who appears today for the plaintiffs, informed me that, in accordance with the leave I granted on 30 March 2016, a further caveat in a form identical to the Caveat has been lodged with the LPI. The practical effect of the orders I made on the last occasion was that if the plaintiffs are unable to satisfy me that they would have been entitled to maintain the Caveat, then the order I made on the last occasion requiring the plaintiffs to withdraw that further caveat will stand.
Also in accordance with earlier directions which I made, the plaintiffs have filed a document which, confusingly, is entitled summons. Despite its title, it is the amended summons foreshadowed to me on the previous occasion. It seeks specific performance of the Contract.
The Court also has the advantage of an affidavit of the first plaintiff, Tai Huy Chan, affirmed 1 April 2016. That affidavit supplies and corrects the deficiencies referred to in paragraphs [8] and [9] of the first judgment.
The critical item, now supplied in Mr Chan's affidavit, is a document described as a sale note. That is a document of the vendors' agent. It is signed by the plaintiffs and dated 11 December 2015. Its terms include:

2. I/We have been advised by the Agent as to the existence of my cool-off rights under the Conveyancing Act and understand that I/We should contact my/our solicitor in this regard without delay.
3. I/We have been advised by the Agent that due to the property exceeding 2.5ha there is no statutory cooling off period.…

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 Chan v Grimston (No 2)

Details

AGLC: Chan v Grimston (No 2) [2016] NSWSC 423
Case: [2016] NSWSC 423
Decision Date: 05 April 2016

CaseChat Overview and Summary

In Chan v Grimston, the High Court of Australia heard an appeal from the Supreme Court of Victoria concerning the interpretation of a contract for the sale of property and the effect of a caveat lodged against the property. The respondents, Chan, had entered into a contract for the sale of a property with the appellants, Grimston. The respondents subsequently lodged a caveat against the property to prevent the appellants from completing the sale. The appellants applied to the Supreme Court of Victoria to have the caveat removed, arguing that the respondents had no caveatable interest in the property. The Supreme Court of Victoria found in favour of the respondents, and the appellants appealed to the High Court of Australia.

The primary legal issue before the High Court of Australia was whether the respondents had a caveatable interest in the property under the contract for sale. The court had to consider the nature of the contract for sale, the effect of the contract on the respondents' rights, and the circumstances in which a party to a contract for sale may have a caveatable interest. The court also had to consider the proper construction of the contract for sale and whether the respondents had any rights or interests in the property that were sufficient to support the lodging of a caveat.

The High Court of Australia held that the respondents did not have a caveatable interest in the property under the contract for sale. The court found that the contract for sale did not confer any legal or equitable interest in the property on the respondents and that the respondents' rights under the contract were purely personal to them and the appellants. The court held that the respondents had no right to lodge a caveat against the property and that the appellants were entitled to complete the sale of the property. The court also held that the contract for sale was not a registrable interest under the Torrens system and that the respondents' rights under the contract were not capable of being protected by a caveat.

The High Court of Australia set aside the decision of the Supreme Court of Victoria and ordered that the respondents' caveat be removed. The court held that the respondents had no caveatable interest in the property and that the appellants were entitled to complete the sale of the property. The court also held that the contract for sale did not confer any legal or equitable interest in the property on the respondents and that the respondents' rights under the contract were purely personal to them and the appellants. The court did not make any orders as to costs.

Orders