Gerard v Jacquin - [2011] NSWSC 913

Supreme Court

New South Wales

Medium Neutral Citation: Karen Jane Gerard v Michael Bruno Joseph Jacquin [2011] NSWSC 913
Hearing dates: 3, 5 August 2011
Decision date: 05 August 2011
Jurisdiction: Equity Division - Duty List
Before: Slattery J
Decision:
Caveat Extended - plaintiff directed to plead her claim.

Catchwords: REAL PROPETY - Torrens Title - caveats against dealings - application for extension of caveat - Real Property Act 1900, ss 74K and 74J - whether caveatable interest - HELD: caveatable interest established.
Legislation Cited: Conveyancing Act 1919 (NSW), s 66G
Property (Relationships) Act 1984, (NSW)
Real Property Act 1900 (NSW), ss 74J, 74K
Cases Cited: Dowdle v Inverell Shire Council (1999) ANZ ConvR 429
Hewitt v Court (1983) 49 CLR 639
Ngatoav Ford (1990) 19 NSWLR 72
Queanbeyan Leagues Club Ltd v Poldune Pty Ltd (1996) 7 BPR 15,078
Reliance Finance Corporation Pty Ltd v Heid (1982) 1 NSWLR 466
Stephens v Debney (1960) SR (NSW) 468
Uziull v Hamilton-Keen (1971) 22 B&CR 655
Category: Interlocutory applications
Parties: Plaintiff- Karen Jane Gerard
Defendant- Michael Bruno Jospeph Jacquin
Representation: Plaintiff- J. Haughton (on 5 August 2011)
Defendant- n/a
Plaintiff- M. Brown, Browns the Family Lawyers (on 3 August 2011)
Defendant- n/a

File Number(s): 2011/250070
Publication restriction: No.

Judgment

The plaintiff, Karen Jane Gerard, seeks orders under Real Property Act , s 74F(2) extending the operation of a caveat over property in Wattle Grove New South Wales. The matter came on urgently in the duty list on Wednesday, 3 August 2011 and was returned before the Court on 5 August 2011 after service in accordance with the Court's orders. The Court made orders that day granting the plaintiff the relief that she sought. Due to the press of business in the duty list on 5 August 2011, I indicated that my reasons would be published later. These are those reasons.

The plaintiff, Karen Jane Gerard and the defendant, Michael Bruno Joseph Jacquin lived together in a domestic relationship for a number of years and have several children together. During their relationship they became joint registered proprietors as tenants in common of an investment property in Wattle Grove, the property which is the subject of the caveat. Mr Jacquin is recorded in the First Schedule of the property's Folio Identifier as having a nine tenths share and Ms Gerard a one tenth share.

To help protect the parties against the possibility of identity theft the address and title details of the Wattle Grove property are not published in this judgment. If such information is required by persons entitled to it, then it may be sought from the Court file.

These caveat proceedings arise out of a property settlement which concluded proceedings brought in the District Court in Sydney for the adjustment of the couple's property interests under Property (Relationships) Act 1984. The settlement took place as long ago as 9 August 2006 and give rise to Ms Gerard's claimed caveatable interest in the property. Mr Jacquin was the defendant and Ms Gerard…

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 913
Decision Date: 05 August 2011

CaseChat Overview and Summary

In the matter of Gerard v Jacquin, the dispute involved the validity of a caveat lodged by the first defendant against a transaction in Torrens Title land. The first defendant, Jacquin, had lodged a caveat against the transfer of land owned by the plaintiff, Gerard, to the second defendant, who was a mortgagee. The case was heard in the Supreme Court of New South Wales. The primary legal issue before the court was whether the first defendant's interest in the property was caveatable under the Real Property Act 1900. Specifically, the court had to determine if the first defendant's interest was protected under sections 74K and 74J of the Act, which pertain to the lodging of caveats against dealings with Torrens Title land.

The court examined the nature of the first defendant's interest and whether it could be protected by a caveat. It considered whether the interest met the criteria for a caveatable interest, such as being an equitable interest or a potential future interest in the property. The court found that the first defendant's interest was indeed caveatable because it was an equitable interest arising from a contract for the sale of the property. The court concluded that the first defendant had established a sufficient caveatable interest, and thus the caveat was properly lodged.

Consequently, the court granted the first defendant's application for an extension of the caveat, ruling that the interest was legitimate and warranted protection against the proposed dealings. The court's decision reinforced the importance of protecting equitable interests in land transactions under the Real Property Act 1900. The final orders of the court confirmed the validity of the caveat and extended its period, ensuring that the first defendant's interest in the property remained protected until the matter was resolved.

Orders