Mastronardo v Remo West Ryde Pty Ltd - [2024] NSWSC 8

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Mastronardo v Remo West Ryde Pty Ltd [2024] NSWSC 8
Hearing dates: 19 January 2024
Date of orders: 19 January 2024
Decision date: 19 January 2024
Jurisdiction: Equity - Duty List
Before: Meek J
Decision:
Caveat ordered to be removed

Catchwords:
REAL PROPERTY — Caveats — Plaintiff registered proprietor of property at Abbotsford sought to remove a caveat alleging an interest in the property arising by virtue of an agreement said to be between the plaintiff and the defendant company dated 1 August 2022 — Plaintiff’s son purported to be appointed as a director of the defendant the day before the listing (18 January 2024) had previously filed a caveat in virtually identical form in related proceedings also listed in which he accepted that he had no caveatable interest in the property — Limited leave given to the son to represent the defendant — Details regarding the alleged agreement lacking and no proffer of evidence in support of assertion, which was different to the claimed interest, that there was a form of constructive trust — Monies advanced by the company in 2009 but “on terms to be agreed” — No clear evidence of any discussions giving rise to an interest in the property as between the plaintiff and the son — Caveat ordered to be removed
CIVIL PROCEDURE — Hearings — Adjournment — Adjournment refused — Son’s prior involvement in related proceedings brought by him against the plaintiff part of the relevant context indicating that he had not only recently had involvement in the matter — No sufficient evidence supporting a caveatable interest as claimed in the caveat or asserted in an affidavit in support of an adjournment

Legislation Cited:
Real Property Act1900 (NSW)

Cases Cited:
DayvMunday [2019] NSWSC 452
Hanson Construction MaterialsPty Ltd v Vimwise Civil EngineeringPty Ltd [2005] NSWSC 880
KT & T Developments Pty Ltd v Tay (1995) 13 WAR 363
National Australia Bank Ltd v Sayed [2020] NSWSC 1002
ShepherdvHouston [1927] SASR 144

Texts Cited:
Edgeworth, Brendan, Butt’s Land Law (7th ed, 2017, Thomson Reuters)
Lindsay, Shannon, Caveats Against Dealings in Australia and New Zealand (1995, Federation Press)

Category: Principal judgment
Parties: Maria Eugenia Mastronardo (Plaintiff)
Remo West Ryde Pty Ltd (Defendant)
Representation:
Counsel:
D Nagle (Plaintiff)
Self-represented (Defendant)
Solicitors:
Clear Lawyers (Plaintiff)
Self-represented (Defendant)

File Number(s): 2024/18704

EX TEMPORE JUDGMENT (REVISED)

HIS HONOUR: The application before the Court is the return of a summons, which was filed on 16 January 2024 by Maria Eugenia Mastronardo, the registered proprietor of a property located at St Albans Street, Abbotsford (property) seeking removal of a caveat lodged on 9 January 2024 (second caveat) pursuant to s 74MA of the Real Property Act1900 (NSW). A company, Remo West Ryde Pty Ltd, is named as the defendant.
On 16 January 2024, interim relief was initially sought to facilitate short service of the summons. Mr Nagle, who appeared for…

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.

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Details

Case: [2024] NSWSC 8
Decision Date: 19 January 2024

CaseChat Overview and Summary

In the matter of Mastronardo v Remo West Ryde Pty Ltd, the plaintiff sought to remove a caveat lodged against their property in Abbotsford. The plaintiff, the registered proprietor of the property, claimed that the caveat was based on an alleged agreement dated 1 August 2022 between the plaintiff and the defendant company. The plaintiff’s son, who had previously filed a similar caveat in related proceedings, was permitted limited leave to represent the defendant company. The son had accepted in those related proceedings that he had no caveatable interest in the property.

The primary legal issue for the court to determine was whether the defendant company had a caveatable interest in the property, as asserted in the caveat. The court examined the details of the alleged agreement and the evidence provided by the parties. The court noted that there was no clear evidence of any discussions between the plaintiff and the son that would give rise to a caveatable interest in the property. The son's affidavit did not provide sufficient evidence to support the claim of a constructive trust or any other form of interest in the property. The monies advanced by the company in 2009 were stated to be "on terms to be agreed," but there was no evidence of any agreement or discussions regarding the terms. The court concluded that there was insufficient evidence to support the assertion that the defendant company had a caveatable interest in the property.

The court ordered the caveat to be removed, finding that the defendant company had not established a caveatable interest. The court also refused the defendant's application for an adjournment, noting that the son's prior involvement in related proceedings against the plaintiff was part of the relevant context. The court found that the son had recently been involved in the matter and that there was no sufficient evidence supporting a caveatable interest as claimed in the caveat or in the affidavit in support of the adjournment. The final order of the court was for the caveat to be removed and the proceedings to proceed without further delay.

Orders