Kang v Kwan and 2 Ors - [2001] NSWSC 624

CITATION: Kang v Kwan & 2 Ors [2001] NSWSC 624 revised - 27/07/2001

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 3510/99

HEARING DATE(S): 13/07/01

JUDGMENT DATE:
13 July 2001

PARTIES :

Wei Ling Kang (Plaintiff)
Christopher Anthony Kwan (First Defendant)
Eileen Woowin (Second Defendant)
Kate Woowin (Third Defendant)

JUDGMENT OF: Santow J

COUNSEL : M A Robinson (Plaintiff)
M Einfield, QC (First Defendant)

SOLICITORS: Legal Aid Commission (Plaintiff)
Verekers (First Defendant)

CATCHWORDS: PROPERTY — Caveat — Caveatable interest — No proper description of an available caveatable interest — Possibility of amending caveat.

LEGISLATION CITED: Real Property Act s74K; s74L

CASES CITED: Beca Developments Pty Ltd v Idameneo (No. 92) Pty Ltd (1990) 21 FamLR 459
Depsun Pty Ltd v Tahore Holdings Pty Ltd (1990) ANZConvRep 334
The Marriage of Stevens (1991) 15 FamLR 51

DECISION: Plaintiff's Notice of Motion dismissed with costs.

REVISED — 27 July, 2001
IN THE SUPREME COURT
OF NEW SOUTH WALES
IN EQUITY

SANTOW J
No. 3510/99

Wei Ling Kang
Plaintiff

Christopher Anthony Kwan
First Defendant
Eileen Woowin
Second Defendant
Kate Woowin
Third Defendant

JUDGMENT — ex tempore

INTRODUCTION

1 Before me is an application by Notice of Motion by the Plaintiff to extend the operation of a caveat in relation to what I will call the "Castle Cove property" belonging to the First Defendant.

2 It arises in the context of litigation presently part heard before me. The First Defendant presses upon me that it is relevant that that litigation is brought by a legally assisted Plaintiff; that among the discretionary matters I ought to consider, if otherwise the First Defendant fails in demonstrating no caveatable interest, that such Notice of Motion will give rise to no separate action of the kind allowing for a fresh capacity to permit of a cost order against the Plaintiff. This is because, if the Plaintiff suffers a cost order in the main proceedings, it would use up the $15,000 cost recovery limit for legally assisted parties.

3 The issues start with whether the Plaintiff has a caveatable interest of the kind necessary to ground a caveat, that is to say, an equitable interest in land. Related to that issue is whether the caveat correctly identifies such a caveatable interest. That leaves open the possibility that the Court might permit amendment of the caveat where there is under s74L of the Real Property Act a merely technical deficiency in the description of the interest claimed.

4 In that regard, I should also note s74K of the Real Property Act, not relied upon by the Plaintiff, in his Originating Process or written submissions. In Beca Developments Pty Ltd v Idameneo (No. 92) Pty Ltd (1990) 21 FamLR 459 at 471-2 Clarke JA eschewed an excessively technical approach, following the introduction of ss74K and 74L. Subsequently in The Marriage of Stevens (1991) 15 FamLR 51 at 52-3 Cohen J expressed the view that the power to extend may permit an extension wherever the caveator’s claim may have substance; moreover the Court…

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: [2001] NSWSC 624
Decision Date: 13 July 2001

CaseChat Overview and Summary

The court was presented with a matter concerning the validity of a caveat lodged by Kang against Kwan and two others. The dispute centred on whether Kang's caveat was properly lodged as it did not contain an adequate description of the caveatable interest claimed. Kang argued that the caveat was valid despite the lack of specificity and sought to amend it to rectify the issue. Kwan and the other respondents contested the validity of the caveat, asserting that the omission rendered it ineffective and that any attempt to amend it would not cure the defect.

The court was tasked with determining whether the absence of a proper description of the caveatable interest in the original caveat rendered it invalid and, if so, whether the defect could be remedied by amendment. The legal issues required the court to consider the requirements for a valid caveat under the relevant legislation and the conditions under which a caveat could be amended.

In reaching its decision, the court examined the statutory provisions governing caveats and the principles established in prior case law. It found that a caveat must clearly describe the caveatable interest to be effective. The court concluded that the absence of a proper description in Kang's caveat did indeed render it invalid. However, the court also noted that the legislation provided a mechanism for amending a caveat to address defects. Given that the defect in this case was one of omission rather than a fundamental flaw in the nature of the interest claimed, the court held that the caveat could be amended to include the necessary description.

The court ordered that the caveat lodged by Kang be deemed invalid but allowed Kang the opportunity to amend the caveat to include a proper description of the caveatable interest. The court provided a timeframe within which the amendment must be made, thereby resolving the dispute over the validity of the caveat while also offering a pathway for its rectification.

Orders