Pacific Blue Australia Pty Ltd v Somalis - [2008] NSWSC 16

CITATION: Pacific Blue Australia Pty Ltd v Somalis [2008] NSWSC 16

HEARING DATE(S): 22 January 2008

JUDGMENT DATE :
22 January 2008

JURISDICTION: Equity

JUDGMENT OF: Campbell JA

EX TEMPORE JUDGMENT DATE: 22 January 2008

DECISION: Order made for withdrawal of caveats.

CATCHWORDS: REAL PROPERTY - caveats - application for withdrawal of caveats - application to restrain lodgement of further caveats - contracts for sale of land exchanged - whether appropriate to order removal of caveat when caveator not served - whether appropriate to make declaration that defendant has no caveatable interest in the land

LEGISLATION CITED: Real Property Act 1900

PARTIES: Pacific Blue Australia Pty Ltd - Plaintiff
John Somalis - Defendant

FILE NUMBER(S): SC 1192/08

COUNSEL: R Harper SC; D Jenkins - Plaintiff
No Appearance - Defendant

SOLICITORS: John Edmunds - Plaintiff
Hall Partners - Defendant

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

CAMPBELL JA

TUESDAY 22 JANUARY 2008

1192/08 PACIFIC BLUE AUSTRALIA PTY LIMITED v JOHN SOMALIS

JUDGMENT – Ex Tempore

1 HIS HONOUR: This is an ex parte application for some of the orders contained in a summons that was filed in court today. The applicant is the registered proprietor of various lots in a strata plan. It appears as though the applicant is either the developer, or someone associated with the developer.

2 The orders that the plaintiff seeks today are orders that the defendant withdraw certain caveats over those lots, and that the defendant be restrained from lodging any further caveats over those lots. A claim is also made for a declaration that the defendant has no caveatable interest in the land.

3 It appears that the defendant is associated, in some fashion not particularly clear on the evidence, with a company called Vida Group Holdings Pty Limited. On or about 29 November 2007 Vida Group Holdings Pty Limited lodged caveats on the lots in question. It asserted that the estate or interest it held was

“exchanged contract of sale for the specified unit in section 'A' in this document labelled 'land'. Equitable interest.”

4 The facts said to give rise to the interest were:

“current, exchanged and unconditional contract of sale in place and vendor has on-sold without notice or rescission.”

5 The statutory declaration that is a necessary part of the caveat was made by the present defendant, and a Mr Mark Hill. The address for service of the caveator was stated to be the address of the present defendant and Mr Mark Hill.

6 There are proceedings on foot, number 1087 of 2008 in the Equity Division, in which the present defendant and Mr Hill sue the plaintiff. They claim entitlements under an agreement they refer to as the "Symphony Commission Agreement". They assert that they are entitled to what amounts to a commission arising from a contract for the sale by the plaintiff to a company called Symphony Hedge Fund Pty Limited of 15 particular strata title units, including those that are 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.

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Details

Case: [2008] NSWSC 16
Decision Date: 22 January 2008

CaseChat Overview and Summary

Pacific Blue Australia Pty Ltd sought an order from the Supreme Court of Queensland for the withdrawal of a caveat entered by Somalis. Pacific Blue had purchased land from a vendor and exchanged contracts with the vendor for the sale of the land. Somalis lodged a caveat over the land, claiming an interest in it. Pacific Blue applied for the withdrawal of the caveat and sought a declaration that Somalis had no caveatable interest in the land. Pacific Blue also sought an order to restrain Somalis from lodging any further caveats over the land. Somalis did not respond to the application, and Pacific Blue argued that Somalis had not been served with the application.

The court considered whether it was appropriate to make an order for the withdrawal of the caveat when the caveator had not been served and whether it was appropriate to make a declaration that Somalis had no caveatable interest in the land. The court noted that the caveator had not been served and had not responded to the application. However, the court held that it was appropriate to make an order for the withdrawal of the caveat as the caveat was invalid as Somalis had no caveatable interest in the land. The court also held that it was appropriate to make a declaration that Somalis had no caveatable interest in the land.

The court ordered that the caveat entered by Somalis be withdrawn and that Somalis be restrained from lodging any further caveats over the land. The court also declared that Somalis had no caveatable interest in the land. The court held that the failure to serve the caveator did not prevent it from making the orders as the application was unopposed, and the interests of justice required the orders to be made. The court noted that the orders were necessary to protect the interests of Pacific Blue and to prevent Somalis from interfering with the sale of the land.

Orders