Hanson Construction Materials Pty Ltd v Roberts

Case [2016] NSWCA 240


Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Hanson Construction Materials Pty Ltd v Roberts [2016] NSWCA 240
Hearing dates:26 July 2016
Decision date: 02 September 2016
Before: Beazley P at [1];
Payne JA at [2];
Sackville AJA at [3]
Decision:

1.   Grant leave to appeal.
2.   Dismiss the appeal.
3.   The appellant pay the respondent’s costs of the appeal, including the application for leave to appeal.

Catchwords: REAL PROPERTY – caveats – application by registered proprietor for an order that a caveat claiming a security interest in the land be withdrawn to enable the registered proprietor to refinance a first mortgage – registered proprietor disputes the validity of claimed security interest protected by the caveat – order made for withdrawal but allowing relodgement of caveat after refinancing – effect of order is to reduce registered proprietor’s equity in the land – whether primary Judge erred in ordering withdrawal – whether discretion conferred by s 74MA of the Real Property Act 1900 (NSW) constrained by requirement that the case be “unusual” or “rare” before an order for withdrawal of a caveat can be made.
Legislation Cited: Real Property Act 1900 (NSW), 74F, s 74G, s 74H, s 74J, s74K, s 74LA, s 74M, s 74MA, s 74O, s 74P, s 74Q, s 97(3) (repealed)
Transfer of Land Act 1893 (WA), s 138
Uniform Civil Procedure Rules 2005 (NSW), r 31.21
Cases Cited: Appleton Papers Inc v Tomasetti Paper Pty Ltd [1983] 3 NSWLR 208
Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; 118 CLR 618
Black v Garnock [2007] HCA 31; 230 CLR 438
Brayson Motors Pty Ltd v Federal Commissioner of Taxation (1983) 57 ALJR 288
Buchanan v Crown and Gleeson Business Finance Pty Ltd [2006] NSWSC 1465; 13 BPR 24,513
Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42
Hanson Construction Materials Pty Ltd v Roberts [2016] NSWSC 989
Heid v Reliance Finance Corporation Pty Ltd [1983] HCA 30; 154 CLR 326
Heritage Properties (No.3) Pty Ltd v Coles Supermarkets Australia Pty Ltd (1993) Q Conv R 54-448
House v The King [1936] HCA 40; 55 CLR 499
J & H Just (Holdings) Pty Ltd v Bank of New South Wales [1971] HCA 57; 125 CLR 546
Jacobs v Platt Nominees Pty Ltd [1990] VR 146
Kerabee Park Pty Ltd v Daley [1978] 2 NSWLR 222
Martyn v Glennan [1979] 2 NSWLR 234
Navarac Pty Ltd v Moondancer Holdings Pty Limited [2009] WASCA 95
Oceanview Group Holdings v Balaz [2006] NSWSC 1469
Person-to-Person Financial Services Pty Ltd v Sharari [1984] 1 NSWLR 745
Tadrous v Tadrous [2009] NSWSC 407
Category:Principal judgment
Parties: Appellant: Hanson Construction Materials Pty Ltd
Respondent: Eleanor Therese Roberts
Representation:

Counsel:

 

Appellant: J Giles SC with B Le Plastrier and E Anderson
Respondent: R Marshall with E Walker

 

Solicitors:

  Appellant: Patane Lawyers
Respondent: O’Hearn Lawyers
File Number(s):CA 2016/216543
 Decision under appeal 
Court or…

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AGLC
Hanson Construction Materials Pty Ltd v Roberts [2016] NSWCA 240
Case
[2016] NSWCA 240
Decision Date

CaseChat Overview and Summary

Hanson Construction Materials Pty Ltd (the registered proprietor) applied to the Supreme Court of New South Wales for an order to withdraw a caveat lodged by Roberts, which claimed a security interest over the land. The registered proprietor sought to refinance its first mortgage and argued that the caveat, which it disputed the validity of, prevented this. The primary judge ordered the withdrawal of the caveat, but allowed Roberts to relodge it after the refinancing was complete, thereby reducing the registered proprietor's equity in the land. The registered proprietor appealed this decision.

The appeal concerned two main legal issues. Firstly, whether the primary judge erred in ordering the withdrawal of the caveat. Secondly, whether the discretion conferred by section 74MA of the *Real Property Act 1900* (NSW) to order the withdrawal of a caveat is constrained by a requirement that the circumstances be "unusual" or "rare" before such an order can be made.

The Court of Appeal held that the discretion under section 74MA of the *Real Property Act 1900* (NSW) is not constrained by a requirement for the case to be unusual or rare. The Court found that the primary judge had correctly exercised their discretion, noting that the order made was a practical solution that balanced the interests of both parties. The refinancing would proceed, and Roberts' security interest would be preserved by allowing the relodgement of the caveat. The appeal was therefore dismissed.

Orders

Orders of the court

1. Grant leave to appeal.

2. Dismiss the appeal.

3. The appellant pay the respondent’s costs of the appeal, including the application for leave to appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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