COMSERV (NO 210) PTY LTD v Robert Ristevski - [2022] NSWSC 821

Supreme Court

New South Wales

Medium Neutral Citation: COMSERV (NO 210) PTY LTD v Robert Ristevski [2022] NSWSC 821
Hearing dates: 15 June 2022
Date of orders: 21 June 2022
Decision date: 21 June 2022
Jurisdiction: Equity - Duty List
Before: Williams J
Decision:
See [84]

Catchwords:
CAVEATS – application for extension of caveat – where estate or interest in land specified in caveat differs from caveatable interest claimed at hearing of application – erroneous specification in caveat of estate in fee simple as the estate or interest claimed by the caveator – s 74L of the Real Property Act 1900 (NSW) not applicable – application dismissed
INTERIM INJUNCTIONS – no issue as to serious question to be tried – where defendant has given sufficient undertaking – balance of convenience does not favour granting injunction – application dismissed

Legislation Cited:
Real Property Act 1900 (NSW), ss 74F, 74J, 74K, 74L
Real Property Regulation 2019 (NSW), Clause 7, Schedule 2

Cases Cited:
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618
Hanson Construction Materials v Vimwise Civil Engineering [2005] NSWSC 880
Mayrin DM Pty Ltd v Kaiyu Deng [2019] NSWSC 1552
Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105
Papas v Grave [2013] NSWCA 308
Sutherland v Vale [2008] NSWSC 759
Woodsman Pty Ltd v Jozic [2018] NSWSC 1311

Category: Procedural rulings
Parties: COMSERV (NO. 210) PTY LIMITED ACN 001 413 902 ATF THE DELKOU FAMILY TRUST ABN 85 701 214 302 (Plaintiff)
Robert Ristevski (Defendant)
Representation:
Counsel:
Mr C D Freeman (Plaintiff)
Mr H Grace (Defendant)
Solicitors:
Streeter Law (Plaintiff)
One Legal (Defendant)

File Number(s): 2022/74074
Publication restriction: N/A

Judgment

Introduction

This judgment concerns the plaintiff’s application for an order under s 74K of the Real Property Act 1900 (NSW) extending until further order the operation of its caveat lodged against the title to the property that is the subject of these proceedings or, alternatively, an interim injunction restraining the defendant from dealing with that property.
For the reasons that follow, both applications are dismissed.

The proceedings

The plaintiff lodged the caveat on 9 March 2022 against the title to property in certificate of title folio identifier 20/230019, known as 57 Grose Vale Road, North Richmond, New South Wales (the Property). The defendant to these proceedings is the registered proprietor of the Property. The caveat is identified by the number AR945008 (the Caveat).
The estate or interest claimed by the plaintiff in the Caveat is described as an “Estate in Fee Simple” arising by virtue of “Beneficial Interest in Trust”. The following details are set out in support of the claim:

“Beneficiary of a constructive trust by reason of the Caveator’s contribution of $1,372,958.68 towards the construction costs and development of the Property pursuant to a joint venture agreement. It would be unconscionable for the registered proprietor to deny the Caveator a 50% beneficial…

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 COMSERV (NO 210) PTY LTD v Robert Ristevski

Details

AGLC: COMSERV (NO 210) PTY LTD v Robert Ristevski [2022] NSWSC 821
Case: [2022] NSWSC 821
Decision Date: 21 June 2022

CaseChat Overview and Summary

Comserv (No 210) Pty Ltd sought to extend a caveat over certain land. Robert Ristevski opposed the application. The court had to decide whether the estate or interest in land specified in the caveat differed from the caveatable interest claimed at the hearing of the application. The court also needed to determine if section 74L of the Real Property Act 1900 (NSW) applied and whether an interim injunction should be granted.

The court held that the estate or interest in land specified in the caveat differed from the caveatable interest claimed at the hearing of the application. The caveat specified an estate in fee simple as the estate or interest claimed by the caveator, which was erroneous. The court held that section 74L of the Real Property Act 1900 (NSW) did not apply in these circumstances. The court also held that there was no serious question to be tried, the defendant had given a sufficient undertaking, and the balance of convenience did not favour granting an interim injunction. The application for the extension of the caveat was dismissed, as was the application for an interim injunction.

No final orders were made as the applications were dismissed.

Orders