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
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…
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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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.