Geneville Constructions Pty Ltd v Odisho-Benjamin - [2024] NSWSC 290

Supreme Court

New South Wales

Medium Neutral Citation: Geneville Constructions Pty Ltd v Odisho-Benjamin [2024] NSWSC 290
Hearing dates: 13 March 2024
Date of orders: 13 March 2024
Decision date: 13 March 2024
Jurisdiction: Equity - Duty List
Before: Parker J
Decision:
See [35]

Catchwords:
LAND LAW — caveats — formal requirements —particulars of estate or interest claimed — where caveat claimed an estate in fee simple but by virtue of facts giving rise to security interest — whether caveat, read as a whole, “really” claimed a security interest — Real Property Act 1900, s 74L — application for extension of caveat dismissed

Legislation Cited:
Real Property Act 1900 (NSW)
Real Property Regulation 2019 (NSW)

Cases Cited:
ATF Group Pty LtdvMelek [2023] NSWSC 333
BrosevSlade [2022] NSWSC 1785
Comserv(No 210) Pty LtdvRistevski [2022] NSWSC 821
SutherlandvVale [2008] NSWSC 759

Texts Cited:
Nil

Category: Procedural rulings
Parties: Geneville Constructions Pty Limited (Applicant/Plaintiff)
Sarah Odisho-Benjamin (Respondent/First Defendant)
Representation:
Counsel:
M F Newton (Applicant/Plaintiff)
B Haines (Respondent/First Defendant)
Solicitors:
Gerald Aronstan (Applicant/Plaintiff)
McAuley Lawyers Pty Limited (Respondent/First Defendant)

File Number(s): 2024/86656
Publication restriction: Nil

JUDGMENT

Revised from transcript; issued on 21 March 2024

Before the Court is an application for extension of a caveat.
The land which is the subject of the caveat is a residential property at Carlingford. It is owned as to 95% by Sarah Odisho‑Benjamin, the first defendant, and Edmund Benjamin, the second defendant, as joint tenants. It is convenient to refer to them as, "the Benjamins". The remaining 5% is owned by Matthew Edmund Benjamin (presumably a relative of Mr Benjamin's) as a tenant in common. He is the third defendant but has not been involved in the current application.
The property is subject to a mortgage in favour of the Australian and New Zealand Bank Group Limited ("ANZ"). ANZ is the fourth defendant but likewise has not been involved in the current application.

Background and procedural history

The plaintiff in the proceedings is Geneville Constructions Pty Limited ("Geneville"). Geneville carries on business as a builder. In 2016, the Benjamins contracted Geneville to undertake building work on the property. The contract was based on the Housing Industry Association’s NSW Residential Building Contract for New Dwellings (edition 7). The work involved demolition of the existing house and the construction of a dual occupancy dwelling.
The parties fell into dispute. This resulted in proceedings in the NSW Civil and Administrative Tribunal. A first instance decision was handed down in April 2020. This was followed by an appeal. On appeal to the Appeal Panel of the Tribunal, the Benjamins were ordered to pay Geneville a sum of $137,000 within 28 days. The decision was delivered in May 2021.
Relevantly for the purpose of this application, the building contract contained clause 31:

The owner charges the site with the due payment to the builder of all moneys that are or may become payable under this contract to the extent that a court or tribunal…

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] NSWSC 290
Decision Date: 13 March 2024

CaseChat Overview and Summary

Geneville Constructions sought an order to have a caveat lodged by Odisho-Benjamin removed and dismissed. The parties had entered into a building contract where Geneville was to construct a house for Odisho-Benjamin. Odisho-Benjamin lodged a caveat over the property to secure payment. The caveat purported to claim an estate in fee simple in the property. Geneville contended that the caveat was invalid as it did not comply with the requirements of section 74L of the Real Property Act 1900, as it did not specify the particulars of the estate or interest claimed. Odisho-Benjamin argued that the caveat, read as a whole, really claimed a security interest over the property. The court was required to determine whether the caveat was validly lodged as a claim to an estate in fee simple or if it was an attempt to claim a security interest, which would render it invalid.

The court found that the caveat did not comply with the formal requirements of section 74L. While the caveat purported to claim an estate in fee simple, the facts giving rise to the security interest meant that the caveat really claimed a security interest. The court concluded that the caveat was invalid as it did not specify the particulars of the estate or interest claimed. The court emphasised that the caveat must be read as a whole, and in this case, the caveat really claimed a security interest. As the caveat was invalid, the court dismissed the application for an extension of the caveat.

The court dismissed Geneville Constructions' application for an order to remove and dismiss the caveat lodged by Odisho-Benjamin. The court found that the caveat was invalid as it did not comply with the formal requirements of section 74L. The caveat, read as a whole, really claimed a security interest over the property, which was not the particulars of the estate or interest claimed. As the caveat was invalid, the application for an extension of the caveat was dismissed.

Orders