McCulloch v Fern - [2000] NSWSC 729

Reported Decision: (2000) NSW ConvR 55-952

New South Wales

Supreme Court

CITATION: McCulloch v Fern [2000] NSWSC 729

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 2095/99

HEARING DATE(S): 20 & 21 July 2000

JUDGMENT DATE: 21 July 2000

PARTIES :

Kevin Francis McCulloch (P)
Donald John Fern (D1)
Androula Fern (D2)

JUDGMENT OF: Hamilton J

COUNSEL : R Sergi (P)
D A Allen (D1 & 2)

SOLICITORS: Kennedy & Cooke (P)
A Relf & Co

CATCHWORDS: CONVEYANCING [184] - Torrens system - Caveats against dealings - Who may lodge - Person who lodged earlier caveat - Whether interest claimed in earlier caveat was the same interest - Circumstances in which leave to lodge will be granted.

LEGISLATION CITED: Real Property Act 1900 s 74O(1) & (2)

CASES CITED: Bell v Mainbarder Pty Ltd 7 November 1991 NSWSC unreported
Calverley v Green (1984) 155 CLR 242
Hanover Investments v Registrar-General [1999] NSWSC 21
Taylor v Commonwealth Development Bank of Australia [1992] ANZ ConvR 161

DECISION: Leave granted to lodge second caveat in respect of same interest.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

FRIDAY, 21 JULY 2000

2095/99 KEVIN FRANCIS McCULLOCH v DONALD JOHN FERN & ANOR

JUDGMENT

HIS HONOUR:
1 This is the hearing of a notice of motion by the plaintiff in these proceedings to extend the operation of caveat 6711548 lodged in respect of the land in folio identifier 87/880417 (“the land”). The application is necessitated by reason of a lapsing notice in respect of the caveat.
2 A short history of the matter is as follows. At a time when the plaintiff’s wife was unfortunately dying of cancer, she became involved with the defendants who were conducting a form of religious community. Shortly beforehand in 1986 they had purchased the land from a John Hankinson for $115,000 and had satisfied the purchase money by paying $20,000 and by giving a mortgage back to Mr Hankinson to secure the balance of $95,000. Some time thereafter, probably in 1988, the plaintiff’s wife paid $93,325 to Mr Hankinson. This was paid to satisfy $90,000 of the $95,000 mortgage debt, the balance being interest to that time. I do not intend to go at great length into the circumstances surrounding the payment of those moneys. Suffice it to say that, in my view, the evidence available shows an arguable case that the plaintiff may be entitled to have a trust interest in the property declared in his favour. The $93,325 was paid out of a joint bank account of the plaintiff and his wife and represented the proceeds of a matrimonial home which they had then recently sold. The evidence appears to show that the plaintiff certainly did not intend his half share of the moneys to be a gift to the defendants and, as I say, while the circumstances have not yet been rendered entirely clear, they raise to my mind an arguable case that there was a trust interest in favour of the plaintiff…

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 McCulloch v Fern

Details

AGLC: McCulloch v Fern [2000] NSWSC 729
Case: [2000] NSWSC 729
Decision Date: 21 July 2000

CaseChat Overview and Summary

McCulloch v Fern is a case involving the interpretation of the Torrens system in relation to the lodging of caveats against dealings. McCulloch lodged a caveat against Fern's intended dealings, asserting an interest in the property. Fern sought to remove the caveat and proceed with the intended transactions. The court was tasked with determining whether McCulloch's interest, as claimed in the earlier caveat, was the same as the interest McCulloch sought to protect by lodging the subsequent caveat. Additionally, the court needed to consider under what circumstances leave to lodge a caveat would be granted.

The court examined the nature of the interests claimed in both caveats. McCulloch argued that the interests were the same, while Fern contended that they were different. The court had to determine whether the subsequent caveat was an attempt to protect a different interest from the one claimed in the earlier caveat. The court also considered the criteria for granting leave to lodge a caveat, including the likelihood of success in establishing the claimed interest and whether the caveator had a bona fide reason for lodging the caveat.

After considering the evidence and arguments presented by both parties, the court found that the interests claimed in the two caveats were not the same. The court held that McCulloch's subsequent caveat was an attempt to protect a different interest, and as such, leave to lodge the caveat should not have been granted. The court further held that the criteria for granting leave to lodge a caveat were not met in this instance. Consequently, the court ruled in favour of Fern and ordered the removal of the subsequent caveat, allowing Fern to proceed with the intended dealings.

Orders