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 2Cases 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
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:
Solicitors:
Mr C D Freeman (Plaintiff)
Mr H Grace (Defendant)
Streeter Law (Plaintiff)
One Legal (Defendant)
File Number(s): 2022/74074 Publication restriction: N/A
Judgment
Introduction
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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.
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For the reasons that follow, both applications are dismissed.
The proceedings
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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).
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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…
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- AGLC
- COMSERV (NO 210) PTY LTD v Robert Ristevski [2022] NSWSC 821
- Case
- [2022] NSWSC 821
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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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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