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Foothills Developments Pty Ltd v Lone Star Developments Pty Ltd

Foothills Developments Pty Ltd v Lone Star Developments Pty Ltd

Case [2005] WASC 38 14 March 2005

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Damage or Destruction

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Right of Buyer to Proceed

Property Law

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FOOTHILLS DEVELOPMENTS PTY LTD -v- LONE STAR DEVELOPMENTS PTY LTD & ORS [2005] WASC 38

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 38
Case No:	CIV:1035/2005	Heard:	3 MARCH 2005
Coram:	MASTER SANDERSON	Delivered:	14/03/05
No of pages:	15	Judgment Part:	1 of 1
Result:	Operation of caveat extended
Category:	B
PDF Version

Parties:	FOOTHILLS DEVELOPMENTS PTY LTD (ACN 056 589 014) LONE STAR DEVELOPMENTS PTY LTD (ACN 109 385 766) VINCENZO CERAVOLO MARIA GRAZIA CERAVOLO THE REGISTRAR OF TITLES
Catchwords:	Transfer of Land Act Application to extend operation of caveat Turns on own facts
Legislation:	Sale of Land Act 1970 (WA), s 5 Transfer of Land Act 1893 (WA), s 138C
Case References:	Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42 American Cyanamid Co v Ethicon Ltd [1975] AC 396 Baker v Jessup [2000] ANZ Conv R 170 Castlemaine Tooheys Ltd v State of South Australia (1986) 161 CLR 148 CLR 1 Dainford Ltd v Lam (1985) 3 NSWLR 255 Deputy Commissioner of Taxation v Corwest Management Pty Ltd [1978] WAR 129 Foran v Wight (1989) 168 CLR 385 Grover & Anor v Taylor & Ors, unreported; SCt of WA; Library No 918901; 6 June 1991 Halse v Embling, unreported; FCt SCt of WA; Library No 970734; 22 December 1997 Hamdan v Widodo & Anor [2004] WASC 123 Jandric v Jandric & Anor [1999] WASC 22 KLDE Pty Ltd (In Voluntary Liq) v Commissioner of Stamp Duties for the State of Queensland (1984) 155 CLR 288 Kuper v Keywest Constructions Pty Ltd (1990) 3 WAR 419 Leros Pty Ltd v Terara Pty Ltd (1991) 174 CLR 40 McNally v Waitzer (1981) 1 NSWLR 294 Olympic Holdings Pty Ltd & Anor v Lochel & Anor [2004] WASC 61 Porter v McDonald & Registrar of Titles [1984] WAR 271 Professional Services of Australia Pty Ltd v Mila Properties Pty Ltd & Anor [2004] WASCA 30 R v Poggioli (1923) 32 CLR 222 Roadshow Entertainment Pty Ltd v CEL Home Video Pty & Anor (1997) 42 NSWLR 462 The Commonwealth of Australia v The State of New South Wales & Anor (1923) 33 CLR 1 Westpoint Corporation Pty Ltd v The Registrar of Titles & Anor [2004] WASC 189

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : FOOTHILLS DEVELOPMENTS PTY LTD -v- LONE STAR DEVELOPMENTS PTY LTD & ORS [2005] WASC 38 CORAM : MASTER SANDERSON HEARD : 3 MARCH 2005 DELIVERED : 14 MARCH 2005 FILE NO/S : CIV 1035 of 2005 BETWEEN : FOOTHILLS DEVELOPMENTS PTY LTD (ACN 056 589 014)

First Plaintiff

AND

LONE STAR DEVELOPMENTS PTY LTD (ACN 109 385 766)

Second Plaintiff

VINCENZO CERAVOLO

First Defendant

MARIA GRAZIA CERAVOLO

Second Defendant

THE REGISTRAR OF TITLES

Third Defendant

Catchwords:

Transfer of Land Act - Application to extend operation of caveat - Turns on own facts

(Page 2)

Legislation:

Sale of Land Act 1970 (WA), s 5

Transfer of Land Act1893 (WA), s 138C

Result:

Operation 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

AGLC: Foothills Developments Pty Ltd v Lone Star Developments Pty Ltd [2005] WASC 38
Case: [2005] WASC 38
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, Foothills Developments Pty Ltd and Lone Star Developments Pty Ltd sought an extension of the operation of a caveat lodged over a property. The central issue was whether there was a serious question to be tried regarding the validity of the contract and the right to extend the caveat. The court considered the terms of the contract, the notice requirements, and the condition of the property. The first and second defendants argued that the contract was terminated due to the plaintiffs' default, while the plaintiffs contended that the first and second defendants failed to provide a required notice under the contract, rendering any termination ineffective. The court found that there was a serious question to be tried on the validity of the termination and the proper form of the caveat. Consequently, the court decided to extend the operation of the caveat, allowing further investigation into these issues.

The final order was that the operation of the caveat over Lot 59, St John Road, Wattle Grove, be extended. The court would address the form of the caveat and any required undertaking as to damages at a later stage.

Orders