Hacker v Sperrer - [2010] NTSC 64

Hacker Nominees (NT) Pty Ltd v Sperrer & Anor [2010] NTSC 64

PARTIES: HACKER NOMINEES (NT) PTY LTD
AS TRUSTEE FOR HACKER
SUPERANNUATION FUND
v
DERRECK FRANZ SPERRER
AND
THE REGISTRAR GENERAL OF THE
NORTHERN TERRITORY

TITLE OF COURT:   SUPREME COURT OF THE
NORTHERN TERRITORY
JURISDICTION:   SUPREME COURT OF THE
TERRITORY EXERCISING
TERRITORY JURISDICTION
FILE NO:   78 of 2010 (21024817)
DELIVERED:   25 November 2010
HEARING DATES:   2 September 2010
JUDGMENT OF:   MASTER LUPPINO
CATCHWORDS:
REAL PROPERTY – Caveats – Application to remove lapsing caveat –
Applicable principles – Improper purpose of registering caveats –Meaning
of “lot” – Whether an interest over part of a lot is caveatable –
Requirements for a valid caveat – Effect of delay in pursuing remedies –
Balance of convenience.
Land Titles Act s 4, 65, 66, 137, 138.
Law of Property Act s 30
Whallin v Bailbart Investments Pty Ltd (1987) 47 SASR 198; MacMichael &
Ors v NHR Forster Pty Ltd (1998) 8 NTLR 16; Love v Kempton & Anor
[2010] VSC 254; Commercial Bank of Australia Limited v Scheirholter &
Anor [1981] VR 292; Jerambak Holdings Pty Ltd & Ors v AustralAsean Pty
Ltd [2005] NTSC 38; Palm Gardens Consolidated Pty Ltd v PG Properties
Pty Ltd [2009] SASC 311; Ovenden v Palyaris (1974) 11 SASR 65; Stern v
McArthur (1988) 165 CLR 489; Kuper v Keywest Constructions Pty Ltd
(1990) 3 WAR 419; GPT Re Ltd v Lend Lease Real Estate Investments Pty
Ltd [2005] NSWSC 964; Keenen v Banks, unreported, Supreme Court (NT),
Kearney J, 28 July 1987; Branir Pty Ltd v Wallco Pastoral Company Pty Ltd
(2006) 18 NTLR 127);
REPRESENTATION:
Counsel:

Plaintiff:   Mr Roper
First Defendant:   Mr Francis
Second Defendant:   Not Represented
Solicitors:

Plaintiff:   De Silva Hebron
First Defendant:   David Francis & Associates
Second Defendant:   Solicitor for the Northern Territory
Judgment category classification: B

Judgment ID Number:   LUP1005
Number of pages:   21
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Hacker Nominees (NT) Pty Ltd v Sperrer & Anor [2009] NTSC 64
No. 78 of 2010 (21024817)
BETWEEN:
HACKER NOMINEES (NT) PTY LTD
Plaintiff

AND
DERRECK FRANZ SPERRER
First Defendant

AND
THE REGISTRAR GENERAL OF THE
NORTHERN TERRITORY
Second Defendant

CORAM: MASTER LUPPINO
REASONS FOR DECISION
(Delivered 25 November 2010)

The matter before the Court is a Summons on Originating Motion by the
Plaintiff seeking removal of two caveats lodged by the First Defendant. The
Second Defendant was not represented at the hearing and will abide the
Court’s decision.
The evidence before the Court comprises the affidavit of James Kerr, the
Managing Director of the Plaintiff, sworn 22 July 2010 and the affidavit of
the First Defendant sworn 16 August 2010.

The relevant background facts are:
1. Forty Two Pty Ltd (“Forty Two”) is the owner of two lots of land at
Winnellie represented by Certificates of Title Volume 707 Folio 786
and Volume 712 Folio 506 (“the Land”).
2. Australia and New Zealand…

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 Hacker v Sperrer

Details

AGLC: Hacker v Sperrer [2010] NTSC 64
Case: [2010] NTSC 64
Decision Date: 25/11/2010

CaseChat Overview and Summary

Hacker Nominees (NT) Pty Ltd as Trustee for the Hacker Superannuation Fund sought to remove two caveats lodged by Derreck Franz Sperrer. The Plaintiff had obtained a judgment against Forty Two Pty Ltd for $521,000 plus costs and interest, but could not enforce that judgment due to the caveats. The First Defendant claimed an interest in the land as a purchaser under an agreement with Forty Two, which was subject to the completion of a development permit. The Plaintiff argued that the caveats were invalid as they were lodged over an interest in land rather than a lot, and that the First Defendant had delayed in pursuing his remedies. The court had to decide whether the First Defendant had a caveatable interest, whether the caveats were valid, and whether the balance of convenience favoured removing the caveats.

The court found that the First Defendant's interest was an equitable interest that would have been caveatable under the repealed legislation, but that the current legislation only allows caveats to be lodged over an interest in a lot. The court held that a caveat could be registered over part of a lot, but that the First Defendant's caveat over part of a lot did not comply with the statutory formalities. The court also found that the caveats were not lodged for an improper purpose, but that the balance of convenience favoured removing the caveats. The court ordered that the caveats be removed and authorised the Plaintiff to commence the proceedings by originating motion.

Orders