Elliott v Elly Property Wright Residential Pty Ltd - [2024] ACTSC 192

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Elliott v Elly Property Wright Residential Pty Ltd
Citation:	[2024] ACTSC 192
Hearing Date:	19 June 2024
Decision Date:	21 June 2024
Before:	Mossop J
Decision:	1. Upon the plaintiffs having given the usual undertaking as to damages, caveat number 3311785 lodged by Christopher Ross Elliott and Thuy Quynh Trang Vu in respect of Block 4, Section 64, Division of Wright in Volume 2419 Folio 25 is extended until further order of the Court. 2. Liberty to apply is granted on two days’ written notice. 3. The costs of the proceedings are reserved.
Catchwords:	REAL PROPERTY – CAVEATS – Application to extend caveat – multi-unit residential development – caveat lodged by purchaser of unit intended to be created following unit titling – caveat lodged prior to registration of units plan – “no caveat” clause in contract – whether caveat should be extended – equitable interest established in land – existence of equitable interest not dependent upon threat of breach of contract – registered proprietor indicates intention to comply with sale contract – evidence indicates some uncertainty as to conduct and management of the registered proprietor – purchaser willing to cooperate to allow refinancing and unit titling to proceed – caveat extended
Legislation Cited:	Civil Law (Sale of Residential Property) Act 2003 (ACT), ss 19B, 19C Corporations Act 2001 (Cth), s 206A Land Titles Act 1925 (ACT), ss 104(1)(b), 106, 107 Legal Profession (Barristers) Rules 2021 (ACT), r 115.1
Cases Cited:	Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57 Australian Property & Management Pty Ltd v Devefi Pty Ltd (1997) 7 BPR 15,255 Badge Constructions (SA) Pty Ltd v Rule Chambers Pty Ltd [2007] SASC 417; 99 SASR 502 Betlehem v Keytown Constructions Pty Ltd (formerly known as Jadestar Investments Pty Ltd) & Anor [2007] WASC 38 Burnett v 3 Property Group 10 Pty Ltd (No 2) [2023] ACTSC 215 Cardinal Constructions Pty Ltd v Ghersinich [2009] WASC 239 Elly Property Wright Residential Pty Ltd v Elliott [2023] ACTSC 138 Eng Mee Yong v Letchumanan [1980] AC 331 Jessica Holdings Pty Ltd v Anglican Property Trust Diocese of Sydney (1992) 27 NSWLR 140 Kuper v Keywest Constructions Pty Ltd (1990) 3 WAR 419 Lintel Pines Pty Ltd v Nixon [1991] 1 VR 287 Piroshenko v Grojsman & Ors [2010] VSC 240; 27 VR 489 Re Jorss’ Caveat [1982] Qd R 458
Parties:	Christopher Ross Elliott ( First Plaintiff) Thuy Quynh Trang Vu (Second Plaintiff) Elly Property Wright Residential Pty Ltd ( Defendant)
Representation:	Counsel A Chakrabarty ( Plaintiffs) D Robens ( Defendant)
Solicitors Adero Law ( Plaintiffs) Self-represented ( Defendant)
File Number:	SC 181 of 2024

MOSSOP J:

Introduction

1․These proceedings arise out of a contract to purchase a unit in an off-the-plan development known as “Debut” located in Wright. The plaintiffs and the defendant entered into a contract for the purchase of the unit on or about 15 June 2021. At the time of…

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.

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Details

Case: [2024] ACTSC 192
Decision Date: 21 June 2024

CaseChat Overview and Summary

Elliott v Elly Property Wright Residential Pty Ltd involved a dispute over the extension of a caveat lodged against a multi-unit residential development. The caveat was lodged by Christopher Ross Elliott and Thuy Quynh Trang Vu in relation to a unit intended to be created through the titling of Block 4, Section 64, Division of Wright. The property was owned by Elly Property Wright Residential Pty Ltd. The dispute centred around the validity and extension of the caveat, particularly in the context of a "no caveat" clause in the contract of sale, and whether an equitable interest had been established.

The central legal issue was whether the caveat should be extended given the presence of a "no caveat" clause in the contract of sale. The court needed to determine if the equitable interest claimed by the plaintiffs was sufficient to warrant an extension of the caveat. Additionally, the court considered whether the registered proprietor's conduct and intentions provided sufficient grounds for extending the caveat, despite the contractual obligation.

The court found that the plaintiffs had established an equitable interest in the land, which was not contingent on the threat of a breach of contract. The existence of this equitable interest was deemed sufficient to support the extension of the caveat. The court also noted the registered proprietor's indication of intent to comply with the sale contract and the willingness of the plaintiffs to cooperate to allow refinancing and unit titling to proceed. The court concluded that these factors warranted the extension of the caveat. The court further acknowledged the uncertainty regarding the conduct and management of the registered proprietor, which also influenced its decision.

The court granted the extension of caveat number 3311785, subject to the plaintiffs providing the usual undertaking as to damages. The order allowed for liberty to apply on two days’ written notice and reserved the costs of the proceedings.

Orders

Orders of the court

1. Upon the plaintiffs having given the usual undertaking as to damages, caveat number 3311785 lodged by Christopher Ross Elliott and Thuy Quynh Trang Vu in respect of Block 4, Section 64, Division of Wright in Volume 2419 Folio 25 is extended until further order of the Court.

2. Liberty to apply is granted on two days’ written notice.

3. The costs of the proceedings are reserved.

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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