Heaven Builders Pty Ltd v Moustafa - [2024] ACTSC 185

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Heaven Builders Pty Ltd v Moustafa
Citation:	[2024] ACTSC 185
Hearing Dates:	31 May 2024 and 14 June 2024
Decision Date:	14 June 2024
Before:	McCallum CJ
Decision:	(1) Pursuant to s 107C of the Land Titles Act 1925 (ACT), I grant leave to the first plaintiff to lodge a caveat on the land at Block 11 Section 71 Taylor, more commonly known as 1 Trewenack Street, Taylor, ACT 2913. (2) The caveat lodged by the first plaintiff pursuant to order 1 is to remain registered on title until further order of the Court or it is withdrawn by the first plaintiff. (3) I list the matter before myself at 9:30am on 26 July 2024.
Catchwords:	REAL PROPERTY – CAVEATS – application to lodge a caveat – where leave is required because previous caveat has lapsed – where defendants oppose caveat due to interference with sale of the property – where builder and lawyer did not agree to an undertaking as to damages – where owners did not agree to an irrevocable undertaking to disburse proceeds of the sale to the plaintiff’s trust account – where building contract creates a caveatable interest
Legislation Cited:	Land Titles Act 1925 (ACT) s 107C
Cases Cited:	Mayfair Build Pty Ltd v Sanoubane [2023] ACTSC 148
Parties:	Heaven Builders Pty Ltd ( First Plaintiff) Khalil Khan Khattak (Second Plaintiff) Muhammad Shoaib Khan Naizi (Third Plaintiff) Mice Kljusuric (Fourth Plaintiff) Syeda Naila Gul (Fifth Plaintiff) Nour Moustafa Abdelhameed Moustafa ( First Defendant) Marwa Mohamed Elsaied Hassan Keshk (Second Defendant)
Representation:	Counsel B Buckland ( Plaintiffs) Self-represented ( Defendants)
Solicitors Bradley Allen Love Lawyers ( Plaintiffs) Self-represented ( Defendants)
File Number:	SC 185 of 2024

McCALLUM CJ:

EX TEMPORE REASONS (REVISED)

1․Heaven Builders Pty Ltd entered into a construction agreement with Dr Nour Moustafa and Dr Marwa Keshk. The parties are in dispute as to whether any moneys are owed under the building agreement and, by way of cross-claim by Dr Moustafa and Dr Keshk, whether the building works were adequately performed in accordance with the requirements of the contract. Those proceedings have been heard in the Magistrates Court and, subject to the provision of written submissions in accordance with a timetable, the Court’s decision is reserved.
2․On 31 May 2024, prior to the hearing of the proceedings in the Magistrates Court, Heaven Builders brought an urgent application in this Court for leave to lodge a caveat on the title of the property the subject of the building contract. An order of the Court is required because Heaven Builders had previously lodged a caveat and that caveat lapsed. An order of the Court is required to file a successive caveat: s 107C of the Land Titles Act 1925 (ACT).
3․When the proceedings came before me on an urgent basis as duty judge, Dr Moustafa and Dr Keshk appeared for themselves and opposed the relief sought. Their principal concern was that the lodgement of a caveat would…

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: [2024] ACTSC 185
Decision Date: 14 June 2024

CaseChat Overview and Summary

In the case of Heaven Builders Pty Ltd v Moustafa, the applicant sought leave to lodge a caveat over a property at 1 Trewenack Street, Taylor, ACT 2913, to protect their interest under a building contract. The defendants, the property owners, opposed the application as it would interfere with the sale of the property. The court was required to decide whether the applicant was entitled to lodge a caveat despite previous opposition and the interference with the sale.

The primary issue before the court was whether the applicant, Heaven Builders Pty Ltd, was entitled to lodge a caveat on the property. The defendants opposed the application, citing the interference with their intended sale of the property. The court needed to assess whether the applicant's interest under the building contract was caveatable and whether there were any alternative undertakings that could satisfy the defendants' concerns. The court also considered whether the applicant's conduct was reasonable and whether there was a sufficient basis to grant leave to lodge the caveat.

The court found that the applicant's interest under the building contract was indeed caveatable. Although the defendants opposed the application, the court held that the applicant's right to seek protection of their interest was paramount. The court noted that the applicant and the defendants had not agreed to an undertaking as to damages, and the owners had not agreed to an irrevocable undertaking to disburse the proceeds of the sale to the plaintiff’s trust account. Consequently, the court granted leave to the applicant to lodge a caveat, with the caveat to remain registered until further order of the court or withdrawal by the applicant. The matter was listed for further hearing to address the broader dispute between the parties.

The court ordered that leave be granted to the first plaintiff to lodge a caveat on the specified property. The caveat would remain registered until further order of the court or withdrawal by the first plaintiff. The matter was listed for a further hearing before the same judge at 9:30am on 26 July 2024.

Orders

Orders of the court

(1) Pursuant to s 107C of the Land Titles Act 1925 (ACT), I grant leave to the first plaintiff to lodge a caveat on the land at Block 11 Section 71 Taylor, more commonly known as 1 Trewenack Street, Taylor, ACT 2913.

(2) The caveat lodged by the first plaintiff pursuant to order 1 is to remain registered on title until further order of the Court or it is withdrawn by the first plaintiff.

(3) I list the matter before myself at 9:30am on 26 July 2024.

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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