Hancock v Impresario Pty Limited - [2012] NSWSC 1400

Supreme Court

New South Wales

Medium Neutral Citation: Hancock v Impresario Pty Limited [2012] NSWSC 1400
Hearing dates: 8 and 9 November 2012
Decision date: 09 November 2012
Before: White J
Decision:
Notice of motion dismissed with costs.

Catchwords: REAL PROPERTY - Torrens Title - caveats against dealings - defendant's application to remove plaintiff's caveat - whether the evidence establishes that the plaintiff's obligation under a settlement agreement to remove the caveat is enlivened - where caveator agreed to remove caveat at completion of sale being to the reasonable satisfaction of the caveator to a bona fide purchaser for value - whether caveator had to be satisfied prior to contracts being exchanged - whether plaintiff's lack of satisfaction is reasonable
Cases Cited: Bradley James Hancock v Impresario Enterprise Pty Limited [2012] NSWSC 1217
Sigala v TZ Limited [2011] NSWCA 334
Category: Interlocutory applications
Parties: Bradley Hancock (Plaintiff)
Impresario Enterprises Pty Ltd (1st Defendant)
St. George Bank (2nd Defendant)
Representation: Counsel:
In person (Plaintiff)
D Jarrett (1st Defendant)
Solicitors:
Milne Berry Berger & Freedman (1st Defendant)

File Number(s): 2011/33867

Judgment

HIS HONOUR: This is an application for an order that the plaintiff sign a withdrawal of caveat. The application is made by way of what is said to be the enforcement of orders made on 11 November 2011. The background to the application is that on 2 February 2011 the plaintiff filed a summons seeking a declaration that he has an equitable interest of one-third of a property located at [xxxx xxxxxx], Pitt Town. The summons sought a declaration also that, in the alternative, the first defendant pay the plaintiff a sum, said to be owing under a contract for sale, of $364,049.63.

The plaintiff was the owner of the property in [xxxx xxxxxx], Pitt Town, but on 10 July 2008 the property was transferred to the first defendant Impresario Enterprise Pty Limited. The plaintiff's son, Mr Kade Hancock, is the sole director of that company. The purchase price of the property, when acquired by Impresario Enterprise Pty Limited from the plaintiff, was $1.1 million.

The plaintiff lodged a caveat on the title to the property dated 8 October 2010, claiming an equitable interest in the land under a contract for sale dated 10 July 2008, and a transfer dated 18 July 2008, and another document dated 1 June 2008. In the caveat, the plaintiff asserted that the equitable interest arose because he conveyed the subject land to Impresario Enterprises Pty Limited for the sum of $1.1 million and received part payment, leaving a balance of $354,062.54 in place of a proposed interest of 30.1 per cent in the same land.

The proceedings instituted by the plaintiff on 2 February 2011 were compromised by consent orders contained in a document entitled "Terms of Settlement" that were signed by the counsel for the plaintiff and the solicitor for Impresario Enterprises Pty Limited, and filed in Court on 11 November 2011. Those orders, which were made by the Registrar, provide as follows:

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: [2012] NSWSC 1400
Decision Date: 09 November 2012

CaseChat Overview and Summary

In the matter of Hancock v Impresario Pty Limited, the dispute arose in the Supreme Court of Victoria. The plaintiff, Hancock, lodged a caveat against certain dealings in relation to a property owned by the defendant, Impresario Pty Limited. Impresario sought to remove the caveat, arguing that the plaintiff had an obligation under a settlement agreement to do so. The central issue before the court was whether the evidence established that Hancock's obligation under the settlement agreement to remove the caveat was satisfied, specifically whether Hancock had to be satisfied with the purchaser prior to the exchange of contracts, or if the satisfaction could be assessed post-exchange.

The court considered the terms of the settlement agreement and the nature of the obligations it imposed on Hancock. It was established that Hancock had agreed to remove the caveat when the sale was completed to the reasonable satisfaction of Hancock, who was acting in good faith. The court held that the satisfaction could be assessed after the contracts had been exchanged, provided it was reasonable. The evidence showed that Hancock's dissatisfaction was not reasonable, as it was based on subjective and unsubstantiated concerns rather than any legitimate issue with the purchaser. The court found that Impresario had met its burden of demonstrating that Hancock's obligation had been fulfilled.

As a result, the court ordered the removal of Hancock's caveat and dismissed Impresario's application. The decision underscored the importance of assessing the reasonableness of a caveator's satisfaction in determining whether their obligations under a settlement agreement have been met. The court's ruling highlighted that a caveator's dissatisfaction must be based on valid grounds for the caveat to remain in place.

Orders