Layrill Pty Ltd v Furlap Constructions Pty Ltd - [2002] VSC 51

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 4427 of 2002

LAYRILL PTY LTD	Plaintiff
v
FURLAP CONSTRUCTIONS PTY LTD and ANOR	Defendants

---

JUDGE:	Mandie J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 February 2002
DATE OF JUDGMENT:	27 February 2002
CASE MAY BE CITED AS:	Layrill Pty Ltd v Furlap Constructions Pty Ltd
MEDIUM NEUTRAL CITATION:	[2002] VSC 51

---

Caveats – successive caveats – whether caveatable interest – whether renewal “in respect of the same interest”.
Transfer of Land Act 1958, ss. 91(4), 103(1).

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A.W. Sandbach	Issac Brott & Co
For the 1st Defendant	Mr P.J. Hayes	Rotman & Morris

HIS HONOUR:

This is an application pursuant to s.103(1) of the Transfer of Land Act 1958 seeking an order that the Registrar of Titles be directed to refuse to make a recording of either of two caveats which have been accorded instrument numbers X786374T and X786375Q in the Office of Titles, and that the Registrar of Titles further be directed to return such caveats to the solicitors for the first defendant.

The language of s.103(1) of the Transfer of Land Act is not entirely easy to interpret in the circumstances of this application, but there is clear authority that such an order can be obtained on such an application: see Delma Investments Pty Ltd v. Shillito[1], a decision of Gowans, J. It was referred to, I think it is fair to say, with approval by Brooking, J. in Swanston Mortgage Pty Ltd v. Trepan Investments Pty Ltd[2]; although I note that at p.683 His Honour noticed that it had not been submitted that the section did not authorise the giving of such directions. This case is somewhat similar, and Mr Hayes, who appears for the first defendant, did not contend that the Court did not have power under s.103(1) to make the orders sought if the case was otherwise made out.
[1][1971] V.R. 442.
[2][1994] 1 V.R. 672, at 683.

The application arises in the following circumstances. Certain individuals decided to enter into a joint venture and purchased some land for the purpose of developing it under that joint venture. It is unnecessary to detail the precise facts leading up to the joint venture agreement or to canvass all the details of the purchase of the land. It is sufficient to say that the plaintiff became the purchaser of the land and that relations between the plaintiff and the first defendant (Layrill and Furlap respectively) were governed by a written joint venture agreement which was entered into, apparently, on 9 April 1999.

There are a number of relevant provisions, but the primary ones in the joint venture agreement are Clause 2.1, which provides that the parties to the agreement agree to associate themselves as joint venturers for the purpose of completing acquisition of the land and undertaking the project; Clause 2.5, which provides that the joint venturers agree that the land will…

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.

Keep reading for free

Create a free CaseChat account to read Layrill Pty Ltd v Furlap Constructions Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2002] VSC 51
Decision Date: 27 February 2002

CaseChat Overview and Summary

Layrill Pty Ltd sought to determine the validity of successive caveats entered by Furlap Constructions Pty Ltd over a property. The matter was heard in the Supreme Court of Victoria. The primary issue for the court was whether Furlap's successive caveats were validly entered, particularly in light of the provisions of the Transfer of Land Act 1958. Specifically, the court needed to determine if Furlap held a caveatable interest in the property at the time of lodging the successive caveats, and if the renewal was "in respect of the same interest".

The court examined the nature of Furlap's interest in the property and whether it constituted a caveatable interest under the Act. It considered the circumstances under which Furlap entered the caveats and the changes in the property's title over time. The court also assessed whether the successive caveats were lodged "in respect of the same interest" as required by section 91(4) of the Transfer of Land Act 1958. Ultimately, the court found that Furlap did not hold a caveatable interest at the time of lodging the successive caveats, and thus the caveats were invalid. The court also concluded that the successive caveats were not "in respect of the same interest".

As a result, the court quashed the successive caveats entered by Furlap. The orders of the court declared that Furlap's successive caveats were invalid and of no effect. Layrill was entitled to proceed with the sale of the property without further interference from Furlap. The court's decision provided clarity on the validity of successive caveats and the requirements for holding a caveatable interest under the Transfer of Land Act 1958.

Orders