Kondylis v Bacic - [2017] NSWSC 66

Supreme Court

New South Wales

Medium Neutral Citation: Kondylis v Bacic [2017] NSWSC 66
Hearing dates: 8 February 2017
Decision date: 08 February 2017
Jurisdiction: Equity - Duty List
Before: White J
Decision:
Refer to para [10] of judgment.

Catchwords: REAL PROPERTY - Torrens title - Caveats against dealings – Application for withdrawal of caveat – Whether defendant’s claim is a caveatable interest – Plaintiff’s promise to pay money to builder from proceeds of sale – Interest in proceeds from sale not a caveatable interest – Plaintiff required to do equity by transferring money from proceeds of sale to a controlled money account – Proceeding transferred to Local Court
Legislation Cited: Real Property Act 1900 (NSW)
Home Building Act 1989 (NSW)
Cases Cited: Luxury Homes Pty Ltd v Danieli & Anor [2005] NSWSC 379; 12 BPR 23,105
Polidoro Developments Pty Ltd v Hayek & Anor [2012] VSC 20
Category: Procedural and other rulings
Parties: Anastazia Kondylis (Plaintiff)
Frank Ivan Bacic (Defendant)
Representation:
Counsel:
E W L Anderson (Plaintiff)
Mr Abbas (Defendant)
Solicitors:
J Antonopoulos, Solicitor (Plaintiff)
n/a (Defendant)

File Number(s): 2017/38971

Judgment

HIS HONOUR: This is an application pursuant to s 74MA of the Real Property Act 1900 (NSW) for an order that the defendant withdraw a caveat lodged over the plaintiff's land. The caveat claims an equitable interest in the land said to have been derived from an agreement in writing dated 15 October 2016. The agreement provides, in substance, that, on sale of her property, the plaintiff would pay to the defendant for his work, labour and materials, as stated in the typewritten part of the document an amount to a value of $35,000 to $50,000 "depending on the sale of my terrace...". There was also a statement that when a third party, whom, I am told, was a previous builder, paid back moneys for work he did not complete, the plaintiff would be happy to pay an additional $15,000. This was not expressed to be payable out of the proceeds of sale.
The defendant appears to have carried out building work on the plaintiff's house. He claims to be entitled to a payment out of the proceeds of sale of the property.
The plaintiff has entered into a contract for the sale of her property at Arncliffe for a sum of $1,425,000. A notice to complete has been served and the time fixed for completion is 10 February 2017.
The defendant’s claim for an interest in the proceeds of sale is not an interest capable of supporting a caveat. It is not a claim to an interest in the land, but in the proceeds (Luxury Homes Pty Ltd v Danieli & Anor [2005] NSWSC 379; 12 BPR 23,105 at [23]; and Polidoro Developments Pty Ltd v Hayek & Anor [2012] VSC 20 at [19]).
However, the plaintiff, who seeks equity, should do equity. The plaintiff has made a promise to pay at least $35,000 and up to $50,000 from 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.

Continue reading Kondylis v Bacic

Details

AGLC: Kondylis v Bacic [2017] NSWSC 66
Case: [2017] NSWSC 66
Decision Date: 08 February 2017

CaseChat Overview and Summary

The case of Kondylis v Bacic involved the plaintiff, Kondylis, who applied to the Supreme Court of Victoria for the withdrawal of a caveat entered by the defendant, Bacic. The defendant's caveat was entered against the plaintiff's intention to sell a Torrens title property. The crux of the dispute was whether the defendant's claim constituted a caveatable interest under the relevant legislation. The plaintiff had agreed to pay a sum of money to a builder from the proceeds of the property sale. The defendant argued that this agreement constituted a caveatable interest, which the court needed to determine.

The central legal issue before the court was whether the plaintiff's promise to pay money from the proceeds of the sale to the builder constituted a caveatable interest under the Real Property Act 1900 (Vic). The court had to consider whether such an interest in the proceeds of sale could be protected by a caveat. The court found that the plaintiff's agreement to pay money to the builder did not itself confer a caveatable interest, as it did not amount to an interest in the property or a charge upon it. Instead, the court determined that the plaintiff was required to do equity by transferring the money from the proceeds of the sale to a controlled money account. The court held that this did not constitute a caveatable interest.

The Supreme Court concluded that the defendant's caveat was invalid as it was not based on a caveatable interest. Consequently, the court ordered the withdrawal of the caveat and directed that the proceedings be transferred to the Local Court for further action. The court's decision hinged on the interpretation of the legislation and the nature of the interest claimed by the defendant. This case underscores the importance of understanding the specific requirements for a caveatable interest under the Real Property Act 1900 (Vic).

Orders