Chateau Constructions (Aust) Ltd v Zepinic (No 5) - [2010] NSWSC 265

CITATION: Chateau Constructions (Aust) Ltd v Zepinic & Anor [No 5] [2010] NSWSC 265
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 18 February 2010

JUDGMENT DATE :
8 April 2010

JURISDICTION: Equity

JUDGMENT OF: Slattery J at 1

DECISION: ORDERS:
1. An order that the operation of caveat number AE479151 lodged in relation to the Turramurra property, the address and title details for which are identified in paragraph 2 of the further amended summons be extended until further order of the Court.
2. A declaration that the defendants have charged the Turramurra property, the address and title details for which are identified in paragraph 2 of the further amended summons, with due payment to the plaintiff of $370.847.35 plus interest (at a rate equal to the rate of the time being prescribed for the purposes of s 101 of the Civil Procedure Act 2005 (NSW)) as ordered by the Consumer, Trader and Tenancy Tribunal on 2 February 2009.
3. Order that there be a sale, in accordance with these orders, of the Turramurra property, the address and title details for which are identified in paragraph 2 of the Further Amended Summons (and hereinafter referred to as “the Property”) but that this order be stayed until further order; and, the making of an order for the lifting of such stay will herein be referred to as “the lifting date”.
4. Order that:
(a) Mr Nicholas Craig Malanos be appointed as trustee for the sale of the Property (the Trustee);
(b) the Property immediately vests in the Trustee upon the making of these orders;
(c) the Trustee conduct and complete the sale of the Property in accordance with these orders and convey the Property upon completion of the sale.
5. Order that:
(a) the Trustee may not conduct a sale of the Property nor incur any costs or expenses in connection with the sale of the Property in the period from the date of the making of these orders up to and including two months after the lifting date;
(b) within two months after the lifting date:
(i) the defendants must:
(A) deliver to the Trustee the Certificate of Title for the Property;
(B) within 7 days after being requested in writing by the Trustee by email sent to [email address not published] deliver to the Trustee any other documents in their possession or under their control relating to the Property that are reasonably required by the Trustee to conduct or complete the sale of the Property.
(ii) the Trustee is to take all reasonably necessary steps required (including but not limited to, appointing a real estate agent and auctioneer) to sell the Property by public auction;
(iii) the Trustee is to obtain a valuation of the Property by a registered valuer appointed by the Trustee and upon receipt of the valuation is to apply to the Court for the setting of a reserved price for the sale of…

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.

Keep reading for free

Create a free CaseChat account to read Chateau Constructions (Aust) Ltd v Zepinic (No 5) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] NSWSC 265
Decision Date: 8 April 2010

CaseChat Overview and Summary

The case between Chateau Constructions (Aust) Ltd and Zepinic involved a dispute over a charge made by the plaintiff on the defendants' property. The defendants sought to set aside the declaration of the existence of the charge, which was made in their absence. The court found that the defendants had not provided an adequate explanation for their failure to appear, and no procedural basis existed to set aside the declaration. The court also determined that the defendants' substantive arguments for setting aside the declaration would not succeed in any event.

The legal issues in the case included the validity of the charge made by the plaintiff and the defendants' recent attempt to exercise their rights of termination of the contract. The court held that the defendants' recent actions did not affect the plaintiff's existing security rights under the charge. Additionally, the court confirmed the existing costs orders and reserved the issue of whether the defendants should be granted leave to cross-claim.

The court granted the plaintiff's motion for a judicial sale of the defendants' property, which was subject to the charge. Orders for the judicial sale of the property were made, with a stay on the sale until the plaintiff's costs were assessed. The court found that a sale in court by a trustee was appropriate due to the acrimonious nature of the dispute. The plaintiff was granted leave to bid at the public auction.

The court's final orders included the confirmation of the existing costs orders, the granting of leave to the plaintiff to bid at the public auction, and the stay on the sale of the property until the plaintiff's costs were assessed. The court reserved the issue of whether the defendants should be granted leave to cross-claim.

Orders