McCarthy v McIntyre

[1999] FCA 805

McCarthy & Ors v McIntyre & Ors
NG 1043 of 1998
Edlan No. 54 Pty Limited v Auro Romano Mcintyre
N 494 of 1999
[1999] FCA 805

McCarthy v McIntyre [1999] FCA 805

RONALD IAN McCARTHY & ORS v NEVILLE McINTYRE & ORS

NG 1043 OF 1998

EDLAN NO. 54 PTY LIMITED v AURO ROMANO McINTYRE

N 494 OF 1999

HILL, SACKVILLE, KATZ JJ

SYDNEY

16 JUNE 1999

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

RONALD IAN McCARTHY        NG 1043 OF 1998

First Appellant

MAXWELL McCARTHY

Second Appellant

EDLAN NO. 54 PTY LIMITED

Third Appellant/Cross Respondent

AND:

NEVILLE McINTYRE

First Respondent

AURO ROMANO McINTYRE

Second Respondent/Cross Appellant

NEVITORO INVESTMENTS PTY LIMITED

Third Respondent

BETWEEN:

EDLAN NO. 54 PTY LIMITED        N 494 OF 1999

Appellant

AND:

AURO ROMANO McINTYRE

Respondent

JUDGES:

HILL, SACKVILLE AND KATZ JJ

DATE OF ORDER:

16 JUNE 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS IN PROCEEDING NUMBERED NG 1043 OF 1998 THAT:

1.       The appeal by the first appellant and the third appellant against the orders made by Beaumont J on 11 September 1998 and 25 February 1999 be dismissed.

2.       The application by the first applicant and the third applicant against the respondents in proceeding numbered NG 672 of 1996 be dismissed.

3.       The appeal by the second appellant against the orders made by Beaumont J on 11 September 1998 and 25 February 1999 be allowed.

4.       Remit the second appellant's third party reliance claim against the respondents for determination by Beaumont J consistently with this Court's reasons for judgment.

5.       The second respondent's cross-appeal against the judgment given by Beaumont J on 25 February 1999 in favour of the third appellant in the sum of $505,476.43, plus interest, be dismissed.

6.       The third appellant's appeal against the order made by Beaumont J on 25 February 1999 that interest be payable only in a sum calculated as from 1 December 1997 be dismissed.

THE COURT ORDERS AND DECLARES IN PROCEEDING NUMBERED N 494 OF 1999 THAT:

7.       The appeal be allowed.

8.       Set aside order 1 of the orders made by Beaumont J on 29 April 1999.

9.       Declare that:

a)       the appellant holds an unpaid vendor's lien over the property comprising the whole of the land in folio identifier 1/71148 and 2/516593, now comprising folio identifiers 1/811506 and 21/812698, known as Riverview Lodge; and

b)       the said lien secures the judgment debt owing by the respondent to the appellant in the sum of $505,476.43 together with interest.

COSTS:

10.       The second respondent pay eighty per cent of the third appellant's costs of the appeals and the cross-appeal referred to in [63] of the principal reasons for judgment.

11.       Set aside order 4 of the orders made by Beaumont J in proceeding numbered NG 672 of 1996 and remit the question of costs dealt with in that order to Beaumont J for further determination consistently with the reasons for judgment…