Chateau Constructions (Aust) Ltd v Zepinic - [2009] NSWSC 1339

CITATION: Chateau Constructions (Aust) Ltd v Zepinic [2009] NSWSC 1339

HEARING DATE(S): 28 September 2009

JUDGMENT DATE :
28 September 2009

JURISDICTION: Equity

JUDGMENT OF: Slattery J at 1

EX TEMPORE JUDGMENT DATE: 28 September 2009

DECISION: Caveat AE 479151B dated 2 February 2009 extended until further order of the Court

CATCHWORDS: REAL PROPERTY - torrens title - caveats against dealings - extension of caveat sought - non appearance of defendants - evidence of charge sufficient to support caveat - extension of caveat granted

LEGISLATION CITED: Real Property Act 1900 (NSW) s 74J, 74K

CATEGORY: Principal judgment

PARTIES: Plaintiff: Chateau Constructions (Aust) Limited
First Defendant: Milla Zepinic
Second Defendant: Vito Zepinic

FILE NUMBER(S): SC 4643/09

COUNSEL: Plaintiff: Mr B Ilkovski
Defendants: No Appearance

SOLICITORS: Plaintiff: Toomey Pegg Drevikovsky Lawyers
Defendants: No Appearance

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

SLATTERY J

MONDAY 28 SEPTEMBER 2009

4643/09 CHATEAU CONSTRUCTIONS (AUST) LIMITED v MILLA ZEPINIC & VITO ZEPINIC

JUDGMENT

1 HIS HONOUR: These proceedings are a dispute between a builder, Chateau Constructions Pty Limited and owners of certain domestic premises in Turramurra, Doctor and Mrs Zepinic.

2 Chateau Constructions contracted with the Zepinics to do building work at their premises in Turramurra. The precise address of those premises will not be recorded in this judgment pursuant to the Court's policy of reducing the risk of identity theft through material published by the Court. The precise address of Zepinics is obtainable in the Court file.

3 Differences arose between the parties about the performance of the building contract, which led to litigation in the Consumer Trade and Tenancy Tribunal. The plaintiff, Chateau Constructions was successful before the CTTT. Chateau Constructions now seeks to take advantage of a charging provision in the building contract to secure the sum found to be due to it by the CTTT. Chateau Constructions has lodged a caveat over the Turramurra property. Today it seeks to extend that caveat under s 74K of the Real Property Act 1900.

4 More detailed relevant facts are the following. The building contract between the parties was made on 23 February 2006. The contract contains a charging provision in the following terms:

“The owner [the Zepinics] charges the site [the Turramurra property] with the due payment to the builder [Chateau Constructions] of all monies that are or may become payable under this contract, to the extent a court or tribunal has made an order that the owner pays the money to the builder”.

5 The dispute in the CTTT resulted in the Consumer Trader and Tenancy Tribunal making an order on 2 February 2009 that the Zepinics pay Chateau Constructions the sum of $370,847.35. This order is consequent upon reasons for judgment given by a C Paull, the senior member of that tribunal, on 18 December 2008.

6 The order made in the CTTT qualifies within the charging provision in the building contract as "an order that the Owner pays the money to the Builder". In the circumstances that…

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 1339
Decision Date: 28 September 2009

CaseChat Overview and Summary

Chateau Constructions (Aust) Ltd sought an extension of a caveat against dealings with a property owned by Zepinic. The case was heard in the Supreme Court of New South Wales. The dispute centred on whether the evidence provided by Chateau Constructions was sufficient to support the extension of the caveat, given that Zepinic did not appear in court to contest the application.

The legal issues before the court involved determining whether the evidence presented was adequate to uphold the caveat in Zepinic's absence. The court needed to consider the nature of the evidence provided by Chateau Constructions, specifically whether it was sufficient to establish a real and substantial contention regarding the property's title. Additionally, the court had to examine the procedural implications of Zepinic's non-appearance and its impact on the application for an extension of the caveat.

The court found that the evidence provided by Chateau Constructions was sufficient to support the extension of the caveat. It held that the evidence demonstrated a real and substantial contention regarding the property's title, which was enough to justify the maintenance of the caveat. The court also noted that Zepinic's non-appearance did not undermine the validity of the evidence provided. Consequently, the court granted the application for an extension of the caveat, allowing Chateau Constructions to maintain its caveat against dealings with the property.

Orders