Luxury Homes Pty Ltd v Danieli - [2005] NSWSC 379

CITATION:
Luxury Homes P/L v Danieli & Anor [2005] NSWSC 379

HEARING DATE(S): 12/04/05

JUDGMENT DATE :

12 April 2005

JUDGMENT OF:
White J

DECISION:
1. Plaintiff's application refused; 2. costs of the application for interlocutory relief be the defendants' costs in the proceedings.

CATCHWORDS:
PRACTICE AND PROCEDURE - Application for extension of caveat and interlocutory injunction restraining sale of land - Whether the right to develop land, have land sold and receive a portion of the proceeds gives rise to a caveatable interest - Whether contract was still on foot despite clause providing for automatic termination - Balance of convenience - Real Property Act 1900 (NSW) s 74F(1) - Held that plaintiff does not have a caveatable interest in the land - Not seriously arguable that contract still on foot.

LEGISLATION CITED:
Real Property Act 1900 (NSW)

CASES CITED:
Townsend v Coyne (1995) 6 BPR 13,935
Redglove Projects Pty Ltd v Ngunnawal Aboriginal Council [2004] NSW SC 880
Epple v Wilson [1972] VR 440
Simons v David Benge Motors Pty Limited [1974] VR 585
Davies v Uratoriu (1995) 6 BPR 13,917
Appleton Papers Inc v Tomasetti Paper Pty Ltd [1983] 3 NSWLR 208
Films Rover International Ltd v Cannon Film Sales Ltd [1986] 3 All ER 772

PARTIES:
Luxury Homes Pty Ltd
v
Benito Danieli & Anor

FILE NUMBER(S):
SC 2268/05

COUNSEL:
Plaintiff: V R Gray
Defendants: L Einstein

SOLICITORS:
Plaintiff: McCoy, Grove & Atkinson
Defendant: Wight & Strickland

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Tuesday, 12 April 2005

2268/05 LUXURY HOMES PTY LTD v DANIELI & Anor

JUDGMENT

1 HIS HONOUR: In these proceedings, the plaintiff seeks an order extending the operation of caveat number AB 358190 until further order, and an interlocutory injunction restraining the defendants from selling or contracting to sell land at 180 Wyadra Avenue, North Manly, being Lot 19 in DP 9853, or land at 51 Corrie Road, North Manly, being Lot 16 in DP 9853 or any part of it, or otherwise acting inconsistently with obligations which it is alleged they have under an agreement with the plaintiff.

2 As part of its final relief, the plaintiff will seek a declaration that there is in force an agreement between it and the defendants, under which the plaintiff is entitled to proceed with all reasonable diligence to obtain the consent of the Warringah Council for the development of the two parcels of land, in accordance with the proposal described in a development application lodged with the Warringah Council on or about 28 November 2003 or so close to that application as the Council may approve, to develop the land in accordance with that consent, and to sell or to procure the sale of the land as developed.

3 The defendants are the registered proprietors of the two parcels of land. They have listed their property at 51 Corrie Road, North Manly, for sale. The agents acting on the sale have obtained an…

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 Luxury Homes Pty Ltd v Danieli

Details

AGLC: Luxury Homes Pty Ltd v Danieli [2005] NSWSC 379
Case: [2005] NSWSC 379
Decision Date: 12 April 2005

CaseChat Overview and Summary

Luxury Homes Pty Ltd brought an application against Danieli for an extension of a caveat and an interlocutory injunction restraining the sale of a property. The primary issue was whether the right to develop the land, have it sold, and receive a portion of the proceeds constituted a caveatable interest under the Real Property Act 1900 (NSW). Additionally, the court needed to determine if the contract between the parties was still in effect despite a clause providing for automatic termination. The balance of convenience was also considered in the context of granting an interlocutory injunction.

The court held that the plaintiff did not have a caveatable interest in the land. The court found that the right to develop, sell, and receive proceeds did not meet the criteria for a caveatable interest. Furthermore, the court determined that it was not seriously arguable that the contract was still on foot, as the clause providing for automatic termination was clear and unambiguous. The balance of convenience did not favour the plaintiff, as the potential harm to the defendant outweighed any possible benefit to the plaintiff.

As a result, the application for an extension of the caveat and an interlocutory injunction was dismissed. The court found that there was no caveatable interest and that the contract was not still on foot. Consequently, the plaintiff was not entitled to the relief sought.

Orders