Supreme Court
New South Wales
Medium Neutral Citation: Cui v Salas-Photiadis [2024] NSWSC 1280 Hearing dates: 2 October 2024 Date of orders: 14 October 2024 Decision date: 14 October 2024 Jurisdiction: Equity - Duty List Before: Hmelnitsky J Decision: See [55]-[56].
Catchwords: LAND LAW – Caveats – Withdrawal of caveat under s 74MA of the Real Property Act 1900 (NSW) –Whether caveat failed to specify the nature of the equitable estate or interest claimed – Where interest on caveat was noted to be a “charge” – Whether there is a material difference between an “equitable charge” as opposed to an “equitable mortgage”
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – Where loan agreement between first and second defendants purported to grant the first defendant a security interest over property in connection with construction works performed on property – Whether loan agreement was an “other agreement” under s 7D of the Home Building Act 1989 (NSW) – Whether caveat lodged by first defendant was invalid by reason of s 7D of the Home Building Act 1989 (NSW)
Legislation Cited: Home Building Act 1989 (NSW), ss 6, 7D
Real Property Act 1900 (NSW), ss 3(1), 74F, 74K, 74MA, 74P
Real Property Regulation 2019 (NSW) cl 7, Sch 2 – items 1, 4, 10
Cases Cited: Circuit Finance Pty Ltd v Crown & Gleeson Securities Pty Ltd [2005] NSWSC 997; (2006) NSW ConvR 56-143
Hanson Construction Materials Pty Ltd v Vimwise Civil Engineering Pty Ltd [2005] NSWSC 880; (2006) NSW ConvR 56-137 (Hanson)
Harvie v Stevens [2004] NSWSC 1217; (2004) 12 BPR 22,751
Kell & Rigby Pty Ltd v Flurrie Pty Ltd (2006) 67 NSWLR 113; [2006] NSWSC 906
Roberts v Investwell Pty Ltd (in liq) [2012] NSWCA 134; (2012) 88 ACSR 689
Southern CrossConstructions (NSW) Pty Ltd v Salfa Pty Ltd (in liq) (recs and mgrs apptd) [2009] NSWSC 634
Category: Procedural rulings Parties: Yi Cui (Plaintiff)
Nicolas John Salas-Photiadis (First Defendant)
Simpo Property Services Pty Ltd (Second Defendant)Representation: Counsel:
Solicitors:
A Gandar (Plaintiff)
M Fernandes (First Defendant)
Gilchrist Connell (Plaintiff)
Fortis Law (First Defendant)
File Number(s): 2024/335003
JUDGMENT
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The circumstances giving rise to this dispute are very unfortunate.
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On 12 April 2024, the plaintiff entered into a contract to purchase a home on Wentworth Avenue, Blakehurst (the Property) from the second defendant, Simpo Property Services Pty Ltd (Simpo), for the sum of $4,350,000. The plaintiff paid a deposit of 10% over several transactions between 12 and 30 April. The initial settlement period was 12 weeks, but this was brought forward to 28 June.
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In order to complete the purchase, the plaintiff borrowed funds from Westpac who, in the usual course, agreed to lend against the plaintiff’s promise to grant a mortgage over the Property.
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Each of the vendor and purchaser was represented by solicitors. On 1 May,…
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- AGLC
- Cui v Salas-Photiadis [2024] NSWSC 1280
- Case
- [2024] NSWSC 1280
- Decision Date
CaseChat Overview and Summary
The court held that there was no material difference between an equitable charge and an equitable mortgage and that the caveat did not fail to specify the nature of the equitable estate or interest claimed. The court also held that the loan agreement was not an “other agreement” under section 7D of the Home Building Act 1989 (NSW) and that the caveat was not invalid by reason of this section. The court ordered that the caveat be removed and that Salas-Photiadis pay Cui’s costs of the proceeding.
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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