Jubilee Properties v Parkview Farm - [2013] NSWSC 2011

Supreme Court

New South Wales

Medium Neutral Citation: Jubilee Properties v Parkview Farm [2013] NSWSC 2011
Hearing dates: 16/12/2013
Decision date: 16 December 2013
Jurisdiction: Equity Division - Technology and Construction List
Before: McDougall J
Decision:
Order defendant to withdraw caveat

Catchwords: REAL PROPERTY - caveats - removal of caveats - Real Property Act 1900 (NSW) s 74MA - balance of convenience
Legislation Cited: Real Property Act 1900 (NSW)
Cases Cited: Australian Property Management Pty Ltd v Devefi Pty Ltd (1997) 7 BPR 15,255
Bayblu Holdings Pty Ltd v Capital Finance Australia Ltd (2011) 15 BPR 29,055
Lew v Bluescope Distribution Pty Ltd [2010] NSWSC 794
Martyn v Glennan [1979] 2 NSWLR 234
Category: Procedural and other rulings
Parties: Jubilee Properties Pty Limited (plaintiff)
Parkview Farm Pty Limited (defendant)
Representation: Counsel:
NJ Kidd SC (plaintiff)
GA Sirtes SC / BJ Lloyd (defendant)
Solicitors:
Banki Haddock Fiora Lawyers (plaintiff)
Bartier Perry Solicitors (defendant)

File Number(s): 2013/362571

Judgment

HIS HONOUR: The plaintiff (the trustee) is the proprietor of three adjoining properties at Dee Why. It holds those properties as trustee of a unit trust. One of the unit holders, Jubilee Group Pty Limited (Jubilee Group), holds 75 percent of the issued units. The defendant (Parkview) holds the remaining 25 percent.

Jubilee Group is a company associated with Mr Patrick Keenan. Parkview is a company associated with Mr William Ryder.

I am concerned today with the trustee's application under s 74MA of the Real Property Act 1900 (NSW), that Parkview remove a caveat AI146271Y lodged by it against the titles to the three properties. The estate or interest claimed by that caveat is:

"The interest of a unit holder in a unit trust."

Mr Kidd SC, who appeared for the trustee, did not take the point that the description of the estate or interest was inadequate. Accordingly, I do not decide the matter upon that basis. I do however note that it would be a matter of some difficulty for a person contemplating dealing with the trustee, or indeed the Registrar General, to decide whether, for example, the recording of a dealing might affect the estate or interest claimed by Parkview.

By cl 6 of the unit trust deed as it was drafted and executed, each of the unit holders had:

"... an absolute, vested and indefeasible interest in each and every asset and the income of the trust fund in accordance with their entitlement pursuant to this deed and the right to require the trustee to wind up the trust and distribute the trust property or the net proceeds of the trust property."

By cl 25 of the trust deed, as subsequently and uncontentiously varied, the trustee was authorised:

"... from time to time in its absolute discretion... [to] vary any of the provisions of this deed (including this clause) by a deed or by oral or written resolution of the trust deed."

On 15 November 2013, Jubilee Group procured the trustee to execute a fourth deed of variation to the…

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: [2013] NSWSC 2011
Decision Date: 16 December 2013

CaseChat Overview and Summary

Jubilee Properties and Parkview Farm were involved in a legal dispute concerning the removal of caveats on certain properties. The matter was heard in the Supreme Court of New South Wales. The primary issue before the Court was whether the caveats, which had been lodged by Parkview Farm, could be removed under section 74MA of the Real Property Act 1900 (NSW). Specifically, the Court had to determine if the balance of convenience favoured the removal of the caveats.

The Court examined the criteria set out in section 74MA, which includes whether the caveats were reasonable and whether their removal would cause significant prejudice to the caveator. The Court considered the evidence presented by both parties and the broader context of the dispute. The reasoning of the Court highlighted that the balance of convenience was a crucial factor in deciding whether to remove the caveats. The Court found that, given the circumstances, the balance of convenience did not favour the continuation of the caveats. Consequently, the Court ordered the caveats to be removed.

In its decision, the Court emphasised the importance of the balance of convenience in cases involving the removal of caveats. The Court's ruling was grounded in a careful analysis of the evidence and the statutory provisions. The final orders mandated that the caveats lodged by Parkview Farm be removed from the relevant properties.

Orders