Dolroy Pty Ltd v Civilco Constructions Pty Ltd

[2007] NSWSC 1263

CITATION:	Dolroy Pty Ltd v Civilco Constructions Pty Ltd [2007] NSWSC 1263
HEARING DATE(S):	06/11/07
JUDGMENT DATE :	6 November 2007
JURISDICTION:	Equity Division
JUDGMENT OF:	Barrett J
EX TEMPORE JUDGMENT DATE:	6 November 2007
DECISION:	Order that caveat be withdrawn
CATCHWORDS:	TORRENS SYSTEM - caveat against dealing - application for order for removal - caveat refers merely to "equitable interest" - that description insufficient - no basis for existence of any estate or interest shown
LEGISLATION CITED:	Real Property Act 1900, s.74F(5)(b)(v), 74MA,
CASES CITED:	Circuit Finance Pty Ltd v Crown & Gleeson Securities Pty Ltd (2005) 12 BPR 23,403 Hanson Construction Materials Pty Ltd v Vimwise Civil Engineering Pty Ltd (2005) 12 BPR 23,335 Northern Star Agriculture v Morgan and Banks Developments Pty Ltd [2007] NSWSC 2 Warden v Mortgage House No 1 Pty Ltd [2006] NSWSC 1462
PARTIES:	Dolroy Pty Ltd - Plaintiff Civilco Constructions Pty Ltd - Defendant
FILE NUMBER(S):	SC 5296/07
COUNSEL:	Mr F. Assif - Plaintiff
SOLICITORS:	Jackson Smith Solicitors - Plaintiff

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

WEDNESDAY, 7 NOVEMBER 2007

5296/07 DOLROY PTY LIMITED v CIVILCO CONSTRUCTIONS PTY LIMITED

JUDGMENT

1 By summons filed on 31 October 2007, the plaintiff seeks an order under s.74MA of the Real Property Act 1900 that caveat number AD425540T be withdrawn by the caveator therein named, being the defendant, Civilco Constructions Pty Limited. The caveat is dated 19 September 2007 and affects the land in folio identifier 102/1098945.

2 The estate or interest claimed by Civilco is described in the following terms in Schedule 1 to the caveat:

“Pursuant to equitable interest for subdivision, land title costs, fees and charges.”

3 Schedule 1 to the caveat does not refer to any instrument by virtue of which that claimed estate or interest is created. Rather, the section “By virtue of the facts stated below” has been completed by insertion of the following words:

“Work carried out giving equitable interest for land title costs, fees and charges.”

4 On its face, therefore, the caveat appears to be based on an "equitable interest" arising by virtue of certain "work carried out".

5 Of course, the carrying out of work upon land cannot, of itself, create any estate or interest in the land. The caveat refers to no recognisable estate or interest.

6 In any event, a reference to "equitable interest" gives no real guidance at all to the nature of any estate or interest that might be claimed. I refer in that respect to the decision of Campbell J in Hanson Construction Materials Pty Ltd v Vimwise Civil Engineering Pty Ltd (2005) 12 BPR 23,335. His Honour there drew attention to the requirement arising through s.74F(5)(b)(v) of the Real Property Act that a caveat specify the prescribed particulars of the legal or equitable estate or interest claimed. That requirement was held not to be satisfied by specification of merely an "equitable interest". His Honour said at paragraph 29 of the judgment:

“A claim to be entitled to an ‘equitable interest’ in land is a claim which could relate to a multiplicity of types of interest, from an equitable easement, to the benefit of an option to purchase, to a right to have an agreement for lease specifically performed to the benefit of a restrictive covenant under a common building scheme. As well, it could relate to an equitable mortgage or charge.”

7 The same approach has been taken in a number of other cases: see, for example, Circuit Finance Pty Ltd v Crown & Gleeson Securities Pty Ltd (2005) 12 BPR 23,403, Warden v Mortgage House No 1 Pty Ltd [2006] NSWSC 1462, Northern Star Agriculture v Morgan and Banks Developments Pty Ltd [2007] NSWSC 2 and Raptis v Wija Investments Development Pty Ltd [2007] NSWSC 870.

8 The caveat before me is obviously bad in form and not on any view supportable by reference to the provisions of the Real Property Act. It does not refer to any remotely recognisable estate or interest in land. The appropriate outcome is an order that it be removed.

9 I should mention that the defendant has not appeared. I am satisfied, however, that the defendant was served and there has been received at the registry of the Court an e-mail purporting to come from its sole director and secretary indicating inability to attend today. However, the case is so clear-cut that I had no hesitation in proceeding in the absence of the defendant noting, as I have said, that service has been proved.

10 I order pursuant to s.74MA of the Real Property Act 1900 that Civilco Constructions Pty Limited, the caveator named in caveat number AD425540T, withdraw that caveat by 4 p.m. today, 6 November 2007.

[Counsel addressed on costs]

11 The plaintiff seeks an order that the defendant pay the plaintiff's costs assessed on the indemnity basis. Because the caveat is so obviously bad and entirely unsupportable, the plaintiff should never have been put to the expense and trouble of these proceedings to have it removed. The application is, therefore, well founded.

12 I order that the defendant pay the plaintiff's costs of the proceedings, such costs to be assessed on the indemnity basis.

13 The orders may be taken out forthwith.

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