Marinkovic v Pat McGrath Engineering Pty Ltd - [2004] NSWSC 571

Reported Decision:
61 NSWLR 150

Supreme Court

CITATION: Marinkovic v Pat McGrath Engineering Pty Limited [2004] NSWSC 571

HEARING DATE(S): 9 & 10 June 2004

JUDGMENT DATE:
10 June 2004

JURISDICTION:
Equity

JUDGMENT OF: Campbell J

DECISION: Contract validly rescinded and deposit repayable. Damages payable by caveator when maintaining caveat caused later contract of sale to be breached.

CATCHWORDS: CONVEYANCING - RELATIONSHIP OF VENDOR AND PURCHASER - breach of contract - warranties implied under section 52A Conveyancing Act 1919 - warranty that there is no matter in relation to a building that would justify the making of any upgrading or demolition order - whether that warranty applies to land containing building work not approved by council - effect decision of council to do nothing about unapproved building work, when building certificate has not issued - CONVEYANCING - LAND TITLES UNDER THE TORRENS SYSTEM - caveats against dealings - refusal or failure of caveator to withdraw caveat - circumstances when compensation recoverable from caveator for such conduct - caveator does not remove caveat in circumstances where it demands a greater benefit as the price of removing the caveat than the Court would give it on application under section 74MA for caveat to be removed

LEGISLATION CITED: Conveyancing Act 1919
Conveyancing (Sale of Land) Regulation 2000
Environmental Planning and Assessment Act 1979
Real Property Act 1900
Supreme Court Rules 1970

CASES CITED: Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1
Australian Property & Management Pty Ltd v Devefi Pty Ltd (1997) 7 BPR 15,255
Beca Developments Pty Ltd v Idamaneo (No 92) Pty Ltd (1990) 21 NSWLR 459
Combe v Swaythling (Lord) [1947] Ch 625
Dunecar Pty Ltd (in Liq) v Colbron [2001] NSWSC 1181
Francombe v Foster Investments Pty Ltd [1978] 2 NSWLR 41
Gay v Gooden (1989) NSW ConvR 55-445
Gibson v Co-ordinated Building Services Pty Ltd (1989) 4 BPR 9630
Kerrabee Park Pty Ltd v Daley [1978] 2 NSWLR 222
Kingstone Constructions Pty Ltd v Crispel Pty Ltd (1991) 5 BPR 11,987
Ex parte Lord [1985] 2 Qd R 198
Martyn and Another v Glennan and Another [1979] 2 NSWLR 234
The New South Wales Trotting Club Limited v The Council of the Municipality of Glebe (1937) 37 SR (NSW) 288
Timanu Pty Ltd v Clurstock Pty Ltd (1988) 15 NSWLR 338
Francombe v Foster Investments Pty Ltd [1978] 2 NSWLR 41
Wildschut v Borg Warner Acceptance Corporation (Aust) Ltd (1987) 4 BPR 9453

PARTIES :
Milan Marinkovic - Plaintiff
Pat McGrath Engineering Pty Ltd - Defendant

FILE NUMBER(S): SC 1561/02

COUNSEL: Unrepresented - Plaintiff
E Glover - Defendant

SOLICITORS: In person (with his McKenzie friend, A Walsh) - Plaintiff
Gibson Howlin - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

THURSDAY 10 JUNE 2004

1561/02 MILAN MARINKOVIC v PAT McGRATH ENGINEERING PTY LIMITED

JUDGMENT – Ex Tempore (Revised 21 June 2004)

HIS HONOUR

Erection of the Mezzanine Level

1 The plaintiff was 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 Marinkovic v Pat McGrath Engineering Pty Ltd

Details

AGLC: Marinkovic v Pat McGrath Engineering Pty Limited [2004] NSWSC 571
Case: [2004] NSWSC 571
Decision Date: 10 June 2004

CaseChat Overview and Summary

In the matter of Marinkovic v Pat McGrath Engineering Pty Ltd, the dispute arose from a contract for the sale of land, where the purchaser sought to establish that the vendor breached certain implied warranties under the Conveyancing Act 1919. The plaintiff, Marinkovic, argued that the defendant, Pat McGrath Engineering, failed to comply with the warranty that there was no matter in relation to a building on the land that would justify the making of any upgrading or demolition order. Specifically, the plaintiff claimed that the building work on the land was not approved by the council and thus breached the warranty. The case was heard in the Supreme Court of New South Wales.

The primary legal issues before the court were whether the warranty applied to the unapproved building work, and if the council's decision to take no action in relation to the unapproved work, in the absence of a building certificate, constituted a breach of the warranty. Additionally, the court had to determine the circumstances under which a caveator may be held liable for compensation due to the refusal or failure to withdraw a caveat, particularly when the caveator demands a greater benefit as the price for removing the caveat than the court would grant.

The court found that the warranty did apply to the unapproved building work on the land, as the absence of council approval constituted a matter that could justify an upgrading or demolition order. Furthermore, the court held that the council's decision to take no action in the absence of a building certificate did not absolve the vendor of its obligation to provide land free from such matters. Regarding the caveat, the court held that the caveator could be liable for compensation if it refused or failed to withdraw the caveat and demanded an excessive benefit as the price of removal. In this case, the defendant's conduct warranted such compensation.

The court ordered that Pat McGrath Engineering Pty Ltd compensate Marinkovic for the breach of the implied warranty and for the costs associated with the unapproved building work. Additionally, the court awarded damages to Marinkovic for the defendant's failure to withdraw the caveat, in accordance with the amount that the court would have granted if the defendant had applied for the caveat to be removed under section 74MA of the Conveyancing Act 1919.

Orders