Edlan Pty Ltd v McIntyre

[1999] FCA 523

FEDERAL COURT OF AUSTRALIA

Edlan Pty Ltd v McIntyre [1999] FCA 523

REAL PROPERTY – equitable lien – whether a lien arose in favour of the vendor as security for a promise to assume a responsibility to a third party.

Real Property Act (NSW)

Buckland v Pocknell [1843] 60 ER 157 considered
Davies v Littlejohn (1923) 34 CLR 174 considered
Hewett v Court (1983) 149 CLR 639 considered
Makreth v Symmons [1808] 33 ER 778) cited
Shirlaw v Taylor (1991) 102 ALR 551 considered
Wossidlo v Catt (1935) 52 CLR 301 considered

EDLAN NO. 54 PTY LIMITED v AURO ROMANO McINTYRE

NG 292 of 1998

JUDGE:         BEAUMONT J.
DATE:           29 APRIL 1999
PLACE:         SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 292 OF 1998

BETWEEN:	EDLAN NO. 54 PTY LIMITED Applicant
AND:	AURO ROMANO MCINTYRE Respondent
JUDGE:	BEAUMONT J.
DATE OF ORDER:	29 APRIL 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Edlan’s claim for a declaration that it is entitled to a charge or lien over the “Riverview Lodge” property is refused.

2.Liberty is reserved to the respondent to apply for further relief in respect of caveat No. 3554658.

3.The applicant pay the respondent’s costs of this proceeding.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 292 OF 1998

BETWEEN:	EDLAN NO. 54 PTY LIMITED Applicant
AND:	AURO ROMANO MCINTYRE Respondent

JUDGE:	BEAUMONT J.
DATE:	29 APRIL 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BEAUMONT J:

INTRODUCTION

1. These reasons should be read in conjunction with my reasons dated 11 September 1998 in proceedings NG 672 of 1996 between parties including the present parties dealing with the “Riverview Lodge” transaction claim.  I then ordered, inter alia, that on this claim Mr McIntyre pay Edlan No. 54 Pty Limited (“Edlan”) the sum of $505,476.43, and reserved liberty to Edlan to apply for interest.  Edlan did so apply.  On 8 February 1999, I held that Edlan was entitled to interest.  On 25 February 1999 I ordered that Mr McIntyre pay interest to Edlan in the amount of $61,363.45.

2. The origin of this particular matter is a summons filed by Edlan in the Supreme Court of New South Wales on 14 January 1998 seeking, inter alia, an order for the extension of a caveat lodged by it against dealings in the lands under the Real Property Act (NSW) known as “Riverview Lodge” (“the Property”). The Supreme Court ordered that the proceeding be cross-vested to this Court.

3. Edlan’s caveat claims an equitable interest being a lien to secure the sum of $505,476.43 agreed to be paid by the registered proprietor to the caveator in consideration of the transfer of the Property from the caveator to the registered proprietor.

4. It is common ground that extension of the caveat now depends upon whether Edlan has a valid equitable lien.

5. At a directions hearing, Edlan indicated that the substantive…