Gippsreal Pty Ltd v Boyle - [2006] NSWSC 601

CITATION: Gippsreal Pty Ltd v Boyle & Anor [2006] NSWSC 601
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 08/06/05, 09/06/05

JUDGMENT DATE :
15 June 2006

JURISDICTION: Equity Divison

JUDGMENT OF: White J

DECISION: 1. Refuse the plaintiff’s application that the caveats be further extended; 2. Order that the plaintiff pay the defendants’ costs of that application.

CATCHWORDS: REAL PROPERTY – Caveats – Application to extend caveats – Plaintiff claimed charge over defendants’ land pursuant to charge provisions in letter – Letter of offer gave plaintiff total discretion as to performance of its obligations under putative contract – Whether letter provided valid consideration for charge provisions – Whether acts of part performance on part of plaintiff constituted valid consideration – “Unilateral” contracts – Where valid consideration found – Whether any amount secured by charge – Insufficient evidence that any amount secured – Application to extend caveats dismissed.

LEGISLATION CITED: Uniform Civil Procedure Rules 2005 (NSW)

CASES CITED: Placer Development Ltd v Commonwealth of Australia (1969) 121 CLR 353
Gippsreal Limited v Registrar of Titles and Kurek Investments Pty Ltd [2006] VSC 115
Vodafone Pacific Ltd v Mobile Innovations Ltd [2004] NSWCA 15
Gippsreal Ltd v Registrar of Titles and Kurek Investments Pty Ltd (Supreme Court of Victoria, Court of Appeal, 26/5/06 unreported)
DW Greig & JLR Davis, The Law of Contract (1987)
Australian Woollen Mills Pty Ltd v The Commonwealth (1954) 92 CLR 424
MacRobertson Miller Airline Services v Commissioner of State Taxation (WA) (1975) 133 CLR 125
Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537
ERS Engines Pty Ltd v Wilson (1994) 35 NSWLR 193

PARTIES: Gippsreal Pty Ltd
v
Norman

FILE NUMBER(S): SC 2839/06

COUNSEL: Plaintiff: A C Casselden
Defendants: R McKeand SC

SOLICITORS: Plaintiff: Leonard Legal
Defendants: N/A

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Thursday, 15 June 2006

2839/06 Gippsreal Limited v Norman Boyle & Anor

JUDGMENT

1 HIS HONOUR: This is an application to further extend the operation of two caveats which expire today. The plaintiff, Gippsreal Pty Ltd, claims to be entitled to a charge over land of the defendants, Messrs Boyle and Woods. This interest is said to arise “pursuant to charge provisions contained in the letter of offer dated 25 November 2005 and executed by [Mr Boyle and Mr Woods] as guarantor”.

2 The defendants say that the letter of offer provided no consideration for the charging provision in it. This was because Gippsreal was given a complete discretion as to what, if anything, it would do for the putative borrower. The issues on the present application are first whether Gippsreal made any promise in return for the defendants’ promise to charge their property. If not, there is a further question whether it is seriously arguable that a contract was made and consideration was provided through Gippsreal’s spending time and money in investigating the loan. If it is seriously…

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.

Continue reading Gippsreal Pty Ltd v Boyle

Details

AGLC: Gippsreal Pty Ltd v Boyle [2006] NSWSC 601
Case: [2006] NSWSC 601
Decision Date: 15 June 2006

CaseChat Overview and Summary

Gippsreal Pty Ltd brought an action against Boyle, seeking a declaration that the defendants' land was subject to a charge over in their favour. Gippsreal based their claim on provisions in a letter of offer from the defendants that purported to give Gippsreal a charge over the land. The defendants entered into caveats to prevent Gippsreal from dealing with the land. Gippsreal applied for an extension of the caveats on the basis that they were entitled to a charge over the land. The primary legal issues were whether the provisions in the letter of offer provided valid consideration for the charge, whether acts of part performance by Gippsreal constituted valid consideration, and whether any amount was secured by the charge. The court held that the letter of offer did not provide valid consideration for the charge provisions because it gave Gippsreal total discretion as to performance of its obligations. The court also held that acts of part performance by Gippsreal did not constitute valid consideration. The court further held that the charge was "unilateral" in nature and that, even if valid consideration was found, there was insufficient evidence that any amount was secured by the charge. The application to extend the caveats was dismissed.

Orders