Fitzgibbons v Shaftsbury Pty Ltd - [2011] NSWSC 525

Supreme Court

New South Wales

Medium Neutral Citation: Fitzgibbons v Shaftsbury Pty Ltd [2011] NSWSC 525
Hearing dates: 4 April 2011
Decision date: 05 April 2011
Jurisdiction: Equity Division - Duty List
Before: Brereton J
Decision:
Operation of caveat extended until further order of the Court

Catchwords: REAL PROPERTY - Application to extend operation of caveat - interest described as 'equitable interest arising from estoppel' - test whether caveat has or may have substance - whether serious question to be tried - plaintiff's evidence not challenged - assumption said to arise from representations made by mother - reliance on representations inferred by expenditure of labour and moneys on property - detriment incurred does not have to be of grand scale - plaintiff paid one-quarter of purchase moneys - proprietary remedy may not be disproportionate - plaintiff has arguable case - balance of convenience - proposed refinancing not jeopardised by extension of caveat - undertaking given as to damages - plaintiff impecunious - no significant risk of defendant incurring pecuniary damage if caveat extended - balance of convenience favours extension.
REAL PROPERTY - Caveat said to be defective in form - caveat deals with whole of subject land - remedies available may apply to whole of land - caveat does not specify residential address - want of strict compliance with formalities not fatal - interest not described as beneficial or as chargee - interest said to arise by way of equitable estoppel sufficiently discernible.
Legislation Cited: (NSW) Civil Liability Act 2002, s 5D
(NSW) Real Property Act 1900, s74D
(NSW) Real Property Regulations 2008, r 8, Schedule 3, Schedule 4
Cases Cited: Queensland Estate Pty Limited v Co-Ownership Land Development Pty Ltd (1969) Qd R 150.
Re Henderson's Caveat (1998) 1 Qd R 632.
Re Paul (1912) 19 WN (NSW) 114.
Roclin Investments Pty Ltd v Makris (1974) 7 SASR 485.
Vukic v Luca Grbin; Estate of Zvonko Grbin [2006] NSWSC 41.
Category: Interlocutory applications
Parties: James Fitzgibbons (plaintiff)
Shaftsbury Pty Ltd (defendant)
Representation: Counsel:
Mr L Fermanis (plaintiff)
Mr A C Harding (defendant)
Solicitors:
Berrigen Doube Lawyers (plaintiff)
Hegarty and Elmgreen Lawyers (defendant)

File Number(s): 2011/103419

Judgment

HIS HONOUR: On 16 December 2010 the plaintiff James Fitzgibbons, lodged a caveat in respect of land of which the defendant Shaftsbury Pty Ltd, of which the plaintiff's mother Margo Fitzgibbon, is the sole shareholder and director, is the registered proprietor, claiming an interest described as an "equitable interest claimed by way of estoppel". This interest is said to arise by virtue of the facts that "in or about February 2003, Shaftsbury Pty Limited, through its director, represented that a portion of the property in question, being the house and land currently resided in by the caveator, belongs to the caveator."

On 15 March 2011, the defendant served a lapsing notice in respect of the caveat. By summons filed on 30 March 2011, Mr Fitzgibbons claims, by way of final relief, a declaration that he has a proprietary interest in the property…

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: [2011] NSWSC 525
Decision Date: 05 April 2011

CaseChat Overview and Summary

Fitzgibbons v Shaftsbury Pty Ltd involved a dispute over an application to extend the operation of a caveat lodged over a property. The applicant, Fitzgibbons, claimed an equitable interest in the property, arising from estoppel, which was based on representations made by the defendant's mother. Fitzgibbons sought to extend the caveat to cover a refinancing transaction and argued that the balance of convenience favoured the extension. The defendant, Shaftsbury Pty Ltd, argued that the caveat was defective in form and that the applicant did not have an arguable case.

The primary legal issues before the court were whether the caveat had or may have substance, whether there was a serious question to be tried, and whether the balance of convenience favoured the extension of the caveat. The court was also required to determine whether the caveat was defective in form and whether the applicant's equitable interest was sufficiently discernible.

In deciding the matter, the court found that the applicant had an arguable case based on the evidence presented. The court noted that the detriment incurred by the applicant did not have to be of a grand scale and that the applicant's payment of one-quarter of the purchase price, along with the expenditure of labour and moneys on the property, was sufficient to infer reliance on the representations made by the defendant's mother. The court also found that the balance of convenience favoured the extension of the caveat, as the proposed refinancing was not jeopardised by the extension and the applicant was impecunious. The court held that the want of strict compliance with the formalities of lodging a caveat was not fatal and that the applicant's interest was sufficiently discernible.

The court granted the applicant's application to extend the operation of the caveat, subject to an undertaking as to damages. The court also noted that there was no significant risk of the defendant incurring pecuniary damage if the caveat was extended.

Orders