Cui v Salas-Photiadis - [2024] NSWSC 1280

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
Sutherland v Vale [2008] NSWSC 759; (2008) 14 BPR 26,255
Swiss Bank Corporation v Lloyd’s Bank Ltd [1982] AC 584

Category: Procedural rulings
Parties: Yi Cui (Plaintiff)
Nicolas John Salas-Photiadis (First Defendant)
Simpo Property Services Pty Ltd (Second Defendant)
Representation:
Counsel:
A Gandar (Plaintiff)
M Fernandes (First Defendant)
Solicitors:
Gilchrist Connell (Plaintiff)
Fortis Law (First Defendant)

File Number(s): 2024/335003

JUDGMENT

The circumstances giving rise to this dispute are very unfortunate.
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.
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.
Each of the vendor and purchaser was represented by solicitors. On 1 May,…

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 Cui v Salas-Photiadis

Details

AGLC: Cui v Salas-Photiadis [2024] NSWSC 1280
Case: [2024] NSWSC 1280
Decision Date: 14 October 2024

CaseChat Overview and Summary

Cui sought an order for the removal of a caveat lodged by Salas-Photiadis over a property. Salas-Photiadis lodged the caveat on the basis that they had an equitable interest in the property in the form of a charge. Cui argued that the caveat was invalid because it did not specify the nature of the equitable estate or interest claimed. The court was required to determine whether there was a material difference between an equitable charge and an equitable mortgage, and whether the caveat was invalid under section 74MA of the Real Property Act 1900 (NSW). The court was also required to determine whether the loan agreement between the first and second defendants was an “other agreement” under section 7D of the Home Building Act 1989 (NSW) and whether the caveat was invalid by reason of this section.
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