Legal Research
Cases
Lew v Bluescope Distribution Pty Ltd

Lew v Bluescope Distribution Pty Ltd

Case [2010] NSWSC 794 14 July 2010

No judgment structure available for this case.

Type to search within this case.

CITATION: Lew v Bluescope Distribution Pty Ltd [2010] NSWSC 794

HEARING DATE(S): 14 July 2010

JURISDICTION: Equity

JUDGMENT OF: Pembroke J

EX TEMPORE JUDGMENT DATE: 14 July 2010

DECISION: See judgment

CATCHWORDS: CAVEAT - removal - meaning of "serious issue" - commercial risk - competing registered interest - application of principles in Inglis v Commonwealth Trading Bank (1972) 126 CLR 161

LEGISLATION CITED: Real Property Act 1900

CATEGORY: Principal judgment

CASES CITED: Gay v Gooden (1989) NSW Conv R 55-445
Inglis v Commonwealth Trading Bank (1972) 126 CLR 161
Kerabee Park Pty Ltd v Daley [1972] 2 NSWLR 222
Mango Media Pty Ltd v Garner Transport & Haulage Pty Ltd [2007]
Martyn v Glennan [1979] 2 NSWLR 234
Morkaya v Parkinson [2010] NSWSC 596
Ruxan Pty Ltd v Peachme Pty Ltd [2004] NSWSC 1221
Uniting Church (NSW) Trust Association Ltd v Hill [2005] NSWSC 665

PARTIES: Peter John Lew
Bluescope Distribution Pty Limited

FILE NUMBER(S): SC 2010/00229397

COUNSEL: D McFarlane - for the Plaintiff
A Narayan - for the Defendant

SOLICITORS: Nelson Keane & Hemingway - for the Plaintiff
DLA Phillips Fox - for the Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

PEMBROKE J

WEDNESDAY 14 JULY 2010

2010/00229397 - PETER JOHN LEW v BLUESCOPE DISTRIBUTION PTY LIMITED ACN 096 380 068

EX TEMPORE JUDGMENT

1 HIS HONOUR: The plaintiff and his wife are the registered proprietors of a property known as 41 Thorby Avenue, Dubbo. They have entered into a contract for the sale of the land. That land is mortgaged to St George Bank. The mortgage is registered. The evidence before me indicates that the amount owing to St George Bank and secured by that mortgage is so great that there is no reasonable possibility of any of the net proceeds of sale being available to satisfy the interest of the defendant.

2 The interest of the defendant arises pursuant to a secured loan and guarantee dated 2 March 2005 between the plaintiff and a company owned and controlled by him, and the defendant by its former name.

3 The secured guarantee and indemnity provides that the plaintiff agrees to secure payment of the guaranteed moneys by charging all of his present and future interests in real property. It also provides that he consents as guarantor to the lodgement of a caveat or caveats to record the interest secured by the charge.

Serious Issue

4 The defendant lodged a caveat on the title to the land recording the interest which it claimed pursuant to the secured guarantee. The amount agreed to be owing to the defendant by the plaintiff pursuant to the secured guarantee is approximately $19,000. There is no suggestion in the evidence that St George Bank as the registered mortgagee took with notice of the unregistered interest of the defendant as chargee pursuant to the secured guarantee. There is therefore no serious issue to be tried as to whether the defendant’s unregistered equitable interest as a chargee has any priority as against…

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 Lew v Bluescope Distribution Pty Ltd

Details

AGLC: Lew v Bluescope Distribution Pty Ltd [2010] NSWSC 794
Case: [2010] NSWSC 794
Decision Date: 14 July 2010

CaseChat Overview and Summary

The dispute in Lew v Bluescope Distribution Pty Ltd was heard in the Federal Court of Australia. The plaintiff, Lew, sought the removal of a caveat from a property title lodged by the defendant, Bluescope Distribution Pty Ltd. The case revolved around the interpretation of the term "serious issue" in the context of a caveat and the associated commercial risk when a competing registered interest was present. This interpretation was examined through the lens of principles established in the case of Inglis v Commonwealth Trading Bank.

The central legal issue before the court was whether the defendant's caveat was justified by a serious issue, considering the commercial risk and the presence of a competing registered interest. The court had to assess the seriousness of the issue raised by the defendant in light of the competing interest and determine if the caveat was appropriately lodged. The principles set forth in Inglis v Commonwealth Trading Bank, which concern the balance between protecting a party's interest and the potential harm to others, were applied to guide the decision-making process.

The court found that the term "serious issue" required a substantial and legitimate concern that could reasonably justify the lodging of a caveat. It was held that the defendant's interest must be weighed against the potential detriment to the registered proprietor. Applying these principles, the court determined that the defendant's caveat did not meet the threshold of a "serious issue" given the commercial risk and the presence of the competing registered interest. Consequently, the court ordered the removal of the caveat from the property title.

Orders