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Hanson Construction Materials Pty Ltd v Vimwise Civil Engineering Pty Ltd

Hanson Construction Materials Pty Ltd v Vimwise Civil Engineering Pty Ltd

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Case Copied 25 August 2005 16 min read

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Reported Decision:
(2006) NSW ConvR 56-137

New South Wales

Supreme Court

CITATION:
Hanson Construction Materials v Vimwise Civil Engineering [2005] NSWSC 880

HEARING DATE(S): 25 August 2005

JUDGMENT DATE :

25 August 2005

JURISDICTION:
Equity

JUDGMENT OF:
Campbell J

DECISION:
Caveats to be withdrawn

CATCHWORDS:
MORTGAGES - MORTGAGES AND CHARGES GENERALLY - nature of a floating charge - whether a particular charge is a fixed charge or a floating charge - CONVEYANCING - LAND TITLES UNDER THE TORRENS SYSTEM - caveats against dealings - adequacy of caveat which claims an "equitable interest" - extent of power under section 74L Real Property Act 1900 to disregard failure by caveator to comply strictly with requirements of Real Property Act and Regulations with respect to form

LEGISLATION CITED:
Real Property Act 1900
Real Property Regulation 2003

CASES CITED:
Avco Financial Services Ltd v White [1977] VR 561
Boambee Bay Pty Ltd (in liq) & Anor v Equus Financial Services Ltd (1991) 26 NSWLR 284
Craddock v Scottish Provident Institution (1893) 69 LT 380
Depsun Pty Ltd & Anor v Tahore Holdings Pty Ltd (1990) 5 BPR [97352]
Illingworth v Houldsworth [1904] AC 355
Leros Pty Ltd v Terara Pty Ltd (1992) 174 CLR 407
Lindsay, Caveats against Dealings in Australia and New Zealand 1995
Multi-Span Constructions No 1 Pty Ltd v 14 Portland Street Pty Ltd [2001] NSWSC 696
Palette Shoes Pty Ltd v Krohn (1937) 58 CLR 1
In the Marriage of Stevens (1991) 15 Fam LR 51
Ultra Marine Pty Ltd v Misson [1981], ANZ ConvR 229
United Builders Pty Ltd v Mutual Acceptance Limited (1979) 144 CLR 673

PARTIES:
Hanson Construction Materials Pty Ltd - Plaintiff
Vimwise Civil Enginerering Pty Limited - First Defendant
John Charles Burke - Second Defendant

FILE NUMBER(S):
SC 3794/05

COUNSEL:
J P Redmond - Plaintiff
M R Tyson - Defendants

SOLICITORS:
Leonard Deane Lawyers - Plaintiff
S Moran & Co - Defendants

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

THURSDAY 25 AUGUST 2005

3794/05 HANSON CONSTRUCTION MATERIALS PTY LTD v VIMWISE CIVIL ENGINEERING PTY LTD

JUDGMENT – Ex Tempore; Revised 30 August 2005 (Re application for removal of two caveats)

1 HIS HONOUR: This is a matter which has been referred to me urgently by the duty judge. It is an application to remove two caveats. The proceedings are ones which were begun by the caveator, seeking a declaration that the plaintiff has an estate or interest in two parcels of land, and an order extending two caveats over those parcels of land. As a result of various interlocutory orders, the caveats have come to be extended until further order of the Court. Today the defendants brought an application that the caveats be withdrawn.

2 The first caveat is a caveat over the land contained in what I shall refer to as lot 22. The registered proprietor of lot 22 is the first defendant. The other caveat is on the land which I shall refer…

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: [2005] NSWSC 880
Decision Date: 25 August 2005

CaseChat Overview and Summary

The dispute arose between Hanson Construction Materials Pty Ltd and Vimwise Civil Engineering Pty Ltd, with the primary issue being the classification of a charge over assets as either a fixed charge or a floating charge. The case was heard in the Supreme Court of New South Wales. Hanson Construction Materials sought to enforce a charge over Vimwise Civil Engineering's assets, arguing it was a fixed charge, while Vimwise Civil Engineering claimed it was a floating charge. The court had to determine the nature of the charge and whether the caveat lodged by Vimwise Civil Engineering was adequate.

The key legal issues were the determination of whether the charge in question was a fixed charge or a floating charge and the adequacy of the caveat lodged by Vimwise Civil Engineering. The classification of the charge was critical to determining the rights of the parties over the assets in question. Additionally, the court needed to assess whether the caveat, which claimed an "equitable interest," was sufficient to prevent dealings with the property under the Real Property Act 1900.

In deciding the nature of the charge, the court examined the terms of the agreement and the conduct of the parties. It found that the charge was a floating charge, as it was intended to secure future debts and was not attached to specific assets. Regarding the caveat, the court considered whether the power under section 74L of the Real Property Act 1900 allowed it to disregard any failure by the caveator to comply strictly with the form requirements. The court held that the caveat was adequate as it provided sufficient notice of the claim of an equitable interest.

The final orders of the court recognised the charge as a floating charge and deemed the caveat lodged by Vimwise Civil Engineering to be adequate. The decision clarified the distinction between fixed and floating charges and affirmed the court's discretion to consider the substance over the form in assessing the validity of a caveat.

Orders