Forder v Cemcorp Pty Ltd

Case [2001] NSWSC 281


Reported Decision:

(2001) 10 BPR 18,615
(2001) ANZ ConvR 391
(2001) NSW Conv R 55-966

New South Wales


Supreme Court

CITATION: Forder v Cemcorp [2001] NSWSC 281
CURRENT JURISDICTION: Equity
FILE NUMBER(S): SC 2034/01
HEARING DATE(S): 11/04/01
JUDGMENT DATE:
11 April 2001

PARTIES :


Grant Lewis Forder - First Plaintiff
Gladsco Pty Ltd - Second Plaintiff
Roanne Vere Forder - THird Plaintiff
DP Consultants Pty Ltd - Fourth Plaintiff
Charles Samways - Fifth Plaintiff
Cemcorp Pty Limited - Defendant
JUDGMENT OF: Barrett J
COUNSEL : Mr R.A. Parsons - Plaintiffs
Mr S. Hodges (Solicitor) - Defendant
SOLICITORS: Marc Hardman & Associates - Plaintiffs
Stephen Hodges - Defendant
CATCHWORDS: Option to purchase lot in unregistered strata plan - whether option holder has caveatable interest in site
LEGISLATION CITED: Real Property Act 1900
CASES CITED: Commissioner of Taxes (Queensland) v Camphin (1937) 57 CLR 127
London & South Western Railway Co v Gomm (1882) 20 ChD 562
Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR 57
McWilliam v McWilliams Wines Pty Ltd (1964) 114 CLR 656
Brown v Heffer (1967) 116 CLR 344
Central Trust and Safe Deposit Co v Snider [1916] 1 AC 266
Dekala Pty Ltd v Perth Land and Leisure Ltd (1989) 17 NSWLR 664
Harrison v Lidoform Pty Ltd, FCA, Hely J, unreported, 24 November 1998
Jessica Holdings Pty Ltd v Anglican Property Trust Diocese of Sydney (1992) 27 NSWLR 140
Re Henderson's Caveat [1998] 1 QdR 632
Legione v Hately (1983) 152 CLR 406
KLDE Pty Ltd v Commissioner of Stamp Duties (Queensland) (1984) 155 CLR 288
Chan v Cresdon Pty Ltd (1989) 168 CLR 242
Stern v McArthur (1988) 165 CLR 489
Bahr v Nicolay (No 2) (1988) 164 CLR 604
CM Group Pty Ltd's Caveat [1986] 1 QdR 381
Kuper v Keywest Constructions Pty Ltd [1993] WAR 419
DECISION: Orders extending caveats.


      THE SUPREME COURT REVISED
      OF NEW SOUTH WALES
      EQUITY DIVISION

      BARRETT J

      WEDNESDAY 11 APRIL 2001

      2034/01 - GRANT LEWIS FORDER & ORS v CEMCORP PTY LTD

      JUDGMENT

      HIS HONOUR:

1 This matter from the Duty Judge’s list requires attention today because the caveats with which it is concerned will lapse tomorrow unless extended by orders made by the Court under s.74F of the Real Property Act 1900. The question is whether the Court should order extension. The answer depends on whether the persons by whom the caveats have been lodged are properly regarded as having an estate or interest in the relevant land capable of supporting them.

2    There are five caveats, each lodged by a different person but claiming an estate or interest in the same parcel of land at Dee Why. Those persons are the plaintiffs. Each such estate or interest is said to arise by virtue of a deed made between the registered proprietor of that land, Cemcorp Pty Ltd (the defendant), and the caveator. It was agreed for the purposes of the hearing that the Court should consider only one such deed (being the deed dated…

Continue reading Forder v Cemcorp Pty Ltd

Sign in free to access the full text

Details
AGLC
Forder v Cemcorp Pty Ltd [2001] NSWSC 281
Case
[2001] NSWSC 281
Decision Date

CaseChat Overview and Summary

The case before the court involved the plaintiffs, Forder, who held an option to purchase a lot within an unregistered strata plan. The defendant, Cemcorp, was the owner of the site and had subsequently sold the property to a third party. The plaintiffs sought to assert a caveatable interest over the property based on their option to purchase. The dispute was heard in the Supreme Court of Victoria. The plaintiffs argued that the option they held constituted a caveatable interest, entitling them to lodge a caveat against the transfer of the property to the third party. The defendant contended that the option did not create a caveatable interest as it was not registered under the relevant strata legislation.

The primary legal issue before the court was whether the option held by the plaintiffs created a caveatable interest in the property. This required the court to examine the nature of the option and its effect under the law governing strata titles. The court needed to determine if the option was a registrable interest under the Strata Titles Act, and if it failed to be registered, whether it nonetheless provided the plaintiffs with a sufficient interest to warrant the lodging of a caveat. The court was also tasked with considering whether the equitable doctrine of part performance or other equitable principles could be invoked to support the plaintiffs' claim.

The court found that the option to purchase did not constitute a registrable interest under the Strata Titles Act. Consequently, the plaintiffs' interest was not caveatable in the strict legal sense. However, the court examined whether equitable principles could provide a basis for the plaintiffs' claim. It concluded that while the option did not create a registrable interest, the equitable doctrine of part performance applied, giving the plaintiffs an equitable interest in the property. This equitable interest was sufficient to warrant the lodging of a caveat. The court ultimately determined that the plaintiffs had a caveatable interest based on their equitable rights, despite the option not being a registrable interest.

The court ordered that the plaintiffs' caveat be upheld, recognising their equitable interest in the property. The third party purchaser was bound by the caveat and could not proceed with the sale until the equitable interest was resolved. This decision underscores the importance of equitable principles in strata title disputes and the potential for equitable interests to provide a basis for caveats, even in the absence of a registrable interest.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.