Hanson Construction Materials Pty Ltd v Roberts - [2016] NSWSC 989

Supreme Court

New South Wales

Medium Neutral Citation: Hanson Construction Materials Pty Ltd v Roberts [2016] NSWSC 989
Hearing dates: 14 July 2016
Decision date: 14 July 2016
Jurisdiction: Equity - Duty List
Before: Stevenson J
Decision:
Plaintiff’s caveat to be removed to enable refinance on condition that defendant consents to further caveat being lodged in same terms immediately on refinance

Catchwords: REAL PROPERTY – caveats – whether caveat should be removed to allow refinance – where registered proprietor claims her purported signature on instrument said to create caveatable interest is forged – where registered proprietor’s equity will be reduced by reason of the refinance but likely to be sufficient equity in property to protect alleged caveatable interest – where registered proprietor will consent to further caveat being lodged with same priority
Legislation Cited: Real Property Act 1900 (NSW)
Cases Cited: Buchanan v Crown & Gleeson Business Finance Pty Ltd [2006] NSWSC 1465
Tadrous v Tadrous [2009] NSWSC 407
Category: Procedural and other rulings
Parties: Hanson Construction Materials Pty Ltd (Plaintiff/Respondent)
Elaine Therese Roberts (Defendant/Applicant)
Representation:
Counsel:
B Le Plastrier with E Anderson (Plaintiff/Respondent)
E A Walker (Defendant/Applicant)
Solicitors:
Patane Lawyers (Plaintiff/Respondent)
O'Hearn Lawyers (Defendant/Applicant)

File Number(s): SC 2015/371660

EX TEMPORE Judgment (REVISED)

These proceedings were commenced on 18 December 2015 when the plaintiff, Hanson Construction Materials Pty Ltd, filed a summons seeking an order under s 74K of the Real Property Act 1900 (NSW) that a caveat lodged by it on the title of a property at Marks Point owned by the defendant, Mrs Roberts, ("the Property") be extended (following service on Hanson by Mrs Roberts of a lapsing notice under s 74J of that Act).
The Property is the Roberts’ family home.
Hanson claims it has a caveatable interest in the Property by reason of a guarantee that it alleges Mrs Roberts signed to secure the indebtedness to Hanson of Wayne Roberts Concrete Constructions Pty Ltd ("the Company") under a trading facility dated 2 May 2013 ("the Agreement"). Evidently, the Company was associated with Mrs Roberts' husband's concreting business. On 1 May 2015 the Company was placed into liquidation.
The Agreement, if binding on Mrs Roberts, purports to charge her property, including the Property, in Hanson's favour to secure the amount owing under the Agreement.
Currently, there is a first mortgage on the title of the Property in favour of the Commonwealth Bank of Australia and caveats lodged by (in order) Hanson, by a Mr Morelli (who is the liquidator of the Company) and by Mrs Roberts' solicitors.
On 23 October 2013, Hanson commenced proceedings in the District Court against the Company and against Mr and Mrs Roberts to seek, amongst other things, to recover the amounts said to be due under the Agreement. In those proceedings (which have since been transferred to this Court and which I will call “the Main Proceedings") Mrs Roberts has filed a defence in which she denies that she executed the Agreement. In the Main Proceedings there is currently a direction that…

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 Hanson Construction Materials Pty Ltd v Roberts

Details

AGLC: Hanson Construction Materials Pty Ltd v Roberts [2016] NSWSC 989
Case: [2016] NSWSC 989
Decision Date: 14 July 2016

CaseChat Overview and Summary

In this case, the respondent, the registered proprietor of a property, challenged the appellant's right to maintain a caveat over the property. The appellant argued that the caveat should remain to secure a debt, but the respondent contended that the purported signature on the document creating the caveat was a forgery and therefore the caveat should be removed to allow for a refinance of the property. The dispute came before the Federal Court of Australia. The central legal issue before the court was whether the respondent's equity in the property, which would be reduced by the refinance, would still be sufficient to protect any alleged caveatable interest created by the appellant. The court had to determine whether the respondent's equity in the property would be sufficient to protect any alleged caveatable interest, even if it would be reduced by the proposed refinance. The court found that, although the respondent's equity in the property would be reduced by the refinance, it would likely still be sufficient to protect the alleged caveatable interest. The court also noted that the respondent would consent to a further caveat being lodged with the same priority as the existing caveat. Therefore, the court held that the appellant's caveat should be removed to allow the refinance to proceed. The court ordered that the appellant's caveat be removed, allowing the respondent to proceed with the proposed refinance. The court also ordered that the respondent could lodge a further caveat with the same priority as the existing caveat, subject to the respondent's consent.

Orders