DTC No. 1 v Matthews - [2009] NSWSC 568

CITATION: DTC No. 1 v Matthews [2009] NSWSC 568

HEARING DATE(S): 2 June 2009

JUDGMENT DATE :
3 June 2009

JURISDICTION: Equity

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 3 June 2009

DECISION: Refer to para 52 of judgment.

CATCHWORDS: REAL PROPERTY - torrens title - caveats against dealings - application for extension of caveat - plaintiff claims a beneficial interest as joint venture partner for the development of the land - defendants contend that joint venture agreement validly terminated - serious question to be tried - damages would not be an adequate remedy - balance of convenience favours maintaining the status quo - caveat extended

LEGISLATION CITED: Real Property Act 1900 (NSW)
Corporations Act 2001 (Cth)

CASES CITED: Davies v Uratoriu (1995) 6 BPR 13,917
Luxury Homes Pty Ltd v Danieli [2005] NSWSC 379; (2005) 12 BPR 23,105
Esber v Massih [2006] NSWSC 321
Select Personnel Pty Ltd v Morgan & Banks Pty Ltd (1988) 12 IPR 167
Consolidated Credit Network (NSW) Pty Ltd v Zuck 1 Pty Ltd [2004] NSWSC 132; (2004) 11 BPR 21,499

PARTIES: DTC No. 1 Pty Ltd & 3 Ors
v
David Norman Matthews & 1 Or

FILE NUMBER(S): SC 2977/09

COUNSEL: Plaintiffs: A A Henskens
Defendants: G Sirtes SC & S Callan

SOLICITORS: Plaintiffs: Leonard Legal
Defendants: Morton & Harris RMB Lawyers

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST

WHITE J

Wednesday, 3 June 2009

2977/09 DTC No. 1 Pty Ltd & 3 Ors v David Norman Matthews & 1 Or

JUDGMENT

1 HIS HONOUR: This is an application for extension of a caveat over land in Milton, New South Wales, of which the defendants are the registered proprietors. In the caveat the plaintiff claims a "beneficial interest in the land as joint venture partner with the registered proprietors for the development of the land". That interest is claimed to arise by virtue of a joint venture agreement dated 13 July 2005 between the defendants as owners and the plaintiff as developer.

2 The defendants contend that they terminated the joint venture agreement on 26 February 2009. The plaintiff denies the validity of the purported termination. The defendants say that the plaintiff’s claim for relief under the joint venture agreement is weak and that in any event relief should be refused because the undertakings as to damages proffered have not been shown to be meaningful, and could not readily be enforced.

3 The joint venture agreement recites that the defendants are the owners of two parcels of land at Milton comprising an area of approximately 37 hectares. It recites that the plaintiff is a real estate developer and further recites that:

“ (D) The owners have proposed to the developer that the land is located and zoned such that is suitable for development under State Environmental Planning Policy -- Seniors Living 2004 to comprise a seniors’ living estate of approximately 300 dwellings together with an aged care facility.

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 DTC No. 1 v Matthews

Details

AGLC: DTC No. 1 v Matthews [2009] NSWSC 568
Case: [2009] NSWSC 568
Decision Date: 3 June 2009

CaseChat Overview and Summary

The case before the court involved the plaintiff, DTC No. 1, seeking to extend a caveat against dealings with the land held by the defendants, Matthews. The plaintiff claimed to hold a beneficial interest in the property as a joint venture partner for the development of the land. The defendants argued that the joint venture agreement had been validly terminated. The court had to decide whether a serious question was made out to justify extending the caveat, and whether damages would be an adequate remedy. The court also had to consider the balance of convenience.

The primary legal issues before the court were whether the plaintiff had established a serious question to be tried regarding their beneficial interest in the land, and whether damages would be an adequate remedy if the plaintiff's claim was unsuccessful. The court also had to assess the balance of convenience, considering whether the status quo should be maintained or whether there were compelling reasons to disturb it.

The court found that the plaintiff had established a serious question to be tried concerning their beneficial interest in the property as a joint venture partner. The court also determined that damages would not be an adequate remedy if the plaintiff's claim was ultimately unsuccessful. In assessing the balance of convenience, the court concluded that maintaining the status quo was in the best interest of all parties until the substantive proceedings were determined. Consequently, the court granted the plaintiff's application for an extension of the caveat.

The court's final orders were that the caveat lodged by the plaintiff against the defendants' dealings with the land be extended for a further period. The order was made on the condition that the plaintiff provide security for any damages the defendants may suffer if it was ultimately determined that the caveat was wrongly lodged.

Orders