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GR8 Constructions Pty Ltd v O'Donnell

GR8 Constructions Pty Ltd v O'Donnell

Case [2011] ACTSC 92 23 May 2011

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GR8 CONSTRUCTIONS PTY LIMITED v CAROL ANN O’DONNELL & ORS
[2011] ACTSC 92 (23 May 2011)

REAL PROPERTY – general principles – caveats – lapsing notice – when notice takes effect – Land Titles Act 1925 (ACT), s 106.
REAL PROPERTY – general principles – caveats – principles for extending caveats.

Corporations Act 2001 (Cth)
Evidence Act 1995 (Cth) s 160
Acts Interpretation Act 1901 (Cth) s 29

Land Titles Act 1925 (ACT), ss 106, 108, 161
Legislation Act 2001 (ACT), s 250
Partnership Act 1963 (ACT), ss 9, 10

Matken Constructions Pty Ltd v James & Anor [2009] ACTSC 100
Goodman v J Eban Ltd [1954] 1 QB 550
Big River Timbers Pty Ltd v Stewart (1999) 9 BPR 16,605
Wildschut v Borg Warner Acceptance Corporation (Aust) Ltd (1987) 4 BPR 9453
Leros Pty Ltd v Terara Pty Ltd (1992) 174 CLR 40
Rising Developments Pty Ltd v Hoskins (1996) 39 NSWLR 157
Eng Mee Yong v Letchumanan (1980) AC 331
Australian Security Estates Pty Ltd and Bluecrest Holdings Pty Ltd (1991) 9 BPR 17,533
N & J Efkarpidis Holdings Pty Ltd v Tancred Brothers Pty Ltd (ACTSC Gallop J 2 July 1986 unreported)
Vella & Anor v Aliperti & Anor (1995) NSW ConvR 55‑750
Navarac Pty Ltd v Moondancer Holdings Pty Ltd (2009) 40 WAR 150
Lawrence v Appleby & Anor (2002) NSW ConvR 55‑993
Kingstone Constructions Pty Ltd v Crispel Pty Ltd (1991) 5 BPR 11,987
Gibson v Co‑ordinated Building Services Pty Ltd (1989) 4 BPR 9630
Renascent Interiors & Refurbishers Pty Ltd v ASEL Property Group Pty Ltd [2002] NSWSC 345
BP Oil New Zealand Ltd v Van Beers Motors Ltd [1992] 1 NZLR 211
Buchanan & Anor v Cross & Gleeson Business Finance Pty Ltd (2006) 13 BPR 24,513
Templeton v Leviathan Pty Ltd (1921) 30 CLR 34

EX TEMPORE JUDGMENT

No. SC 321 of 2011

Judge: Refshauge J
Supreme Court of the ACT

Date: 23 May 2011

IN THE SUPREME COURT OF THE     )
  )          No. SC 321 of 2011
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:GR8 CONSTRUCTIONS PTY LTD (ACN: 105 581 646)

Plaintiff

AND:CAROL ANN O’DONNELL
First Defendant

AND:STEPHEN THOMAS O’DONNELL
Second Defendant

AND:JIE GAO O’DONNELL
Third Defendant

AND:REGISTRAR GENERAL, ACT LAND TITLES OFFICE, OFFICE OF REGULATORY SERVICES
Fourth Defendant

ORDER

Judge:  Refshauge J
Date:  23 May 2011
Place:  Canberra

THE COURT ORDERS THAT:

Upon the Plaintiff undertaking to submit to any order the court considers just for paying compensation, to be assessed by the court or as directed by the court, to someone (whether or not a party to the proceeding) who is adversely affected by – a) the operation of the interlocutory order or undertaking; or b) any continuation of the order or undertaking, the court orders that:

To the extent that the Caveats lodged by GR8 Constructions Pty Ltd (ACN 105 581 646) in respect of land, being Block 6 Section 25 Division of Spence contained in Volume 717 Folio 91 and…

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 GR8 Constructions Pty Ltd v O'Donnell

Details

AGLC: GR8 Constructions Pty Ltd v O'Donnell [2011] ACTSC 92
Case: [2011] ACTSC 92
Decision Date

CaseChat Overview and Summary

GR8 Constructions Pty Ltd, a building company, sought to prevent the lapse of its caveats over two parcels of land in Spence. The defendants were the registered proprietors of the land and the Registrar-General of the ACT Land Titles Office. The basis of the caveat was a charge over the land contained in a building contract for the construction of certain buildings. The Registrar-General, pursuant to s 106 of the Land Titles Act 1925 (ACT), sent a lapsing notice to GR8 Constructions, indicating that the caveats would lapse 14 days after the notice unless a court order was obtained to prevent the lapse. The company applied for an order preventing the lapse of the caveats. The court considered whether the caveats had already lapsed, the validity of the lapsing notice, and whether the company had a caveatable interest in the land. Given the uncertainty as to whether the caveats had lapsed and the potential unfairness of allowing the lapse due to an arguably erroneous lapsing notice, the court ordered that the caveats be extended until further order, restrained the Registrar-General from registering any dealing in respect of the land, and adjourned the matter to allow for further submissions on the issues.

Orders