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Peters v Lithgow Forge Pty Ltd

Peters v Lithgow Forge Pty Ltd

Case [2010] NSWSC 283 13 April 2010

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CITATION: Peters v Lithgow Forge Pty Ltd & Ors [2010] NSWSC 283

HEARING DATE(S): 12 April 2010

JURISDICTION: Equity

JUDGMENT OF: Slattery J at 1

EX TEMPORE JUDGMENT DATE: 13 April 2010

DECISION: ORDERS:
1. An order under s 74K of the Real Property Act 1900 (NSW) that Caveat No. AE352871 be extended until further order of the Court.
2. That these orders be entered forthwith.
The Court further notes:
3. The undertaking of the first defendant that it will not transfer, sell dispose or, encumber, create any interest in or charge over, or otherwise deal with the property situated at 227 Mort Street, Lithgow in the State of New South Wales also known as Lot 5 of DP930738, without first providing to the plaintiff at least 14 days notice in writing of such intention.

CATCHWORDS: REAL PROPERTY - torrens title - caveats against dealings - plaintiff's caveat over first defendant's property - debt owed by second defendant to plaintiff - whether plaintiff's caveat should be extended - question whether caveator's claim "has or may have substance" - arguably sufficient consideration provided by the plaintiff for the grant of caveat over first defendant's property through a promise to forbear taking further action against second defendant - equitable charge arguably created in first defendant's property to secure payment of money from second defendant to plaintiff - arguably an intention to create a caveatable interest rather than a mere agreement to lodge a caveat - arguably agreement for caveat complies with s 54A of Conveyancing Act 1919 - caveat has or may have substance - caveat extended

LEGISLATION CITED: Legal Profession Act 2004 (NSW)
Conveyancing Act 1919 (NSW) ss 37A, 54A
Real Property Act 1900 (NSW) s 74K

CATEGORY: Principal judgment

CASES CITED: Coleman v Bone (1996) 9 BPR 16,233
Dowdle v Inverell SC (1998) 9 BPR 17,349
Express Loans and Finance Pty Limited v Hunter [2004] NSWSC 142
Queanbeyan Leagues Club v Poldune Pty Limited (1996) 7 BPR 15,078
Haigh v Brooks (1839) 113 E.R. 119
Lucas v Dixon (1889) 22 QBD 357
Nguyen v Kaha [2008] NSWSC 794
Re Holland: Gregg V Holland (1902) 2 Ch 360
Re Wyvern Developments Ltd (1974) 1 WLR 1097
Surfers Paradise Coaches (Qld) Pty Limited v Tsu Chan Lin [2007] NSWSC 475
Swiss Bank Corporation v Lloyds Bank Limited & Ors [1982] AC 584
Troncone & Ors v Aliperti & Ors (1994) 6 BPR 13,291
The Leonidas D (1985) 1 WLR 925

PARTIES: Plaintiff: Rodd Andrew Peters T/As Rodd Peters Lawyers
First Defendant: Lithgow Forge Pty Limited
Second Defendant: Anthony John Wieland
Third Defendant: Rachel Allen
Fourth Defendant: Nicholine Wieland

FILE NUMBER(S): SC 290828/09

COUNSEL: Plaintiff: Mr M P Cleary
First and Second Defendants: Mr S B Loughnan (Ms L Young on 13 April 2010)
Third and Fourth Defendants: Ms S Daly (Ms L Young on 13 April 2010)

SOLICITORS: Plaintiff: Rodd Peters Lawyers
First and Second Defendants: Gibson Howlin Lawyers
Third and Fourth Defendants: Watkins Tapsell

IN THE SUPREME COURT
OF…

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 Peters v Lithgow Forge Pty Ltd

Details

AGLC: Peters v Lithgow Forge Pty Ltd [2010] NSWSC 283
Case: [2010] NSWSC 283
Decision Date: 13 April 2010

CaseChat Overview and Summary

Peters filed a caveat against a property owned by Lithgow Forge Pty Ltd, to secure a debt owed by a third party. The primary legal issue before the court was whether the caveat should be extended to cover the property in question. The court needed to determine if the caveator's claim had or may have substance, and whether the caveat complied with the statutory requirements set out in section 54A of the Conveyancing Act 1919. The court considered whether there was an intention to create a caveatable interest rather than a mere agreement to lodge a caveat, and if the consideration provided by the plaintiff was sufficient to support the grant of the caveat.

The court found that the plaintiff's promise to forbear taking further action against the third party was arguably sufficient consideration for the grant of the caveat over Lithgow Forge Pty Ltd's property. The court concluded that an equitable charge was created in the property to secure the payment of money from the third party to the plaintiff. The court held that there was an intention to create a caveatable interest rather than a mere agreement to lodge a caveat, and that the agreement for the caveat complied with section 54A of the Conveyancing Act 1919. The court further held that the caveat had or may have substance, and granted an extension of the caveat to cover the property in question.

The court ordered that the caveat be extended to cover the property in question, and that the costs of the application be paid by Lithgow Forge Pty Ltd. The court held that the caveat had or may have substance, and that the plaintiff's claim was therefore entitled to protection under the Torrens title system. The court further held that the agreement for the caveat complied with the statutory requirements set out in section 54A of the Conveyancing Act 1919, and that there was an intention to create a caveatable interest rather than a mere agreement to lodge a caveat. The court found that the consideration provided by the plaintiff was arguably sufficient to support the grant of the caveat over Lithgow Forge Pty Ltd's property.

Orders