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

1. 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.

2. 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.

3. 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.

4. 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]).

5. 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 proceeds of sale, and to pay possibly up to $65,000, depending upon other matters.

6. Initially, no undertaking to pay any moneys to the defendant or into Court or into a controlled moneys account was offered.

7. I understand, although there is no evidence to support this, that the plaintiff may say that her apparent agreement was unenforceable as being in some way contrary to the Home Building Act 1989 (NSW). However, there would clearly be at least a serious question to be tried that the agreement might have operated as a compromise of any claims that might otherwise have arisen, either under that Act or for a restitutionary remedy.

8. The plaintiff has offered to undertake to pay a sum of $35,000 into a controlled moneys account. But it appears to me that, as a condition of an order removing the caveat, she should pay $50,000 into such an account. I understand that there will be sufficient moneys available from the completion of the sale to permit such a payment into a controlled moneys account. I am also told that the plaintiff's solicitor conducts such account.

9. The defendant will have to make a claim for payment of that money. That can be done by filing a cross-claim. But the defendant’s claim is well within the jurisdiction of the Local Court and I will transfer the proceedings to the Local Court after making the orders for the withdrawal of the caveat.

10. I make the following orders:

1.    Order that by 11am on 9 February 2017, the Defendant withdraw caveat number AM54293A that has been lodged in respect of the land in Folio Identifier 116/526733.

2.    Order that, from the proceeds of sale to be obtained by the Plaintiff on completion of the Contract for Sale of the property in Folio Identifier 116/526733, the Plaintiff cause the sum of $50,000 to be paid into her solicitor's trust account or controlled moneys account and that sum not be further dealt with except with the written consent of the Defendant or further order of a Court.

3.    Order that any cross-claim to be filed by the Defendant be filed and served by 22 February 2017.

4.    Order that the proceedings be transferred to the Local Court.

[Parties address on costs.]

5.    I make no order as to costs to the intent that the parties bear their own costs of the application to date.

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