PINDAN PTY LTD -v- SUNNY'S REDEVELOPMENT PTY LTD & ANOR [2001] WASC 104

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASC 104
Case No:	CIV:1362/2001	Heard:	04 APRIL 2001
Coram:	MURRAY J	Delivered:	30/04/01
No of pages:	10	Judgment Part:	1 of 1
Result:	Operation of caveat extended pending establishment of secured fund
PDF Version

Parties:	PINDAN PTY LTD (ACN 009 009 072) SUNNY'S REDEVELOPMENT PTY LTD (ACN 079 804 747) THE REGISTRAR OF TITLES
Catchwords:	Caveat Caveat lodged pursuant to a building contract providing caveatable interest by way of charge granted by the owner to the builder to secure unpaid monies under the contract Compromise agreement made Dispute over money properly payable under compromise and building contract Caveatable interest maintained Whether caveat should be extended pending resolution of dispute Whether balance of convenience favours removal of caveat conditioned upon establishment of fund to secure disputed sum Turns on own facts
Legislation:	Transfer of Land Act 1893 (WA), s 138C
Case References:	Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42 Eng Mee Yong v Letchumanan [1980] AC 331 Hampton Gold Mining Areas Ltd v Metals Exploration Ltd (1995) 17 WAR 30 Porter v McDonald [1984] WAR 271 Beca Developments Pty Ltd v Idameneo (No 92) Pty Ltd (1990) 21 NSWLR 459 Bell v Lever Bros Ltd [1932] AC 161 Commercial Bank of Australia Ltd v Schierholter [1981] VR 292 Commonwealth Bank of Australia v Garon Pty Ltd and Ors [1999] WASC 170 Commonwealth Bank v Amadio (1982-1983) 151 CLR 447 Gibson v Co-ordinated Building Services Pty Ltd (1989) 4 BPR 9630 Griffith v Hodge (1979) 2 BPR 9474 Johnstone v Commerce Consolidated Ltd [1976] VR 463 Kizbeau Pty Ltd v WG & B Pty Ltd (1995) 184 CLR 281 Lam v Ausintel Investments Pty Ltd (1989) 97 FLR 458 Marks v GIO Australia Holdings (1998) 196 CLR 494 Martyn v Glennan [1979] 2 NSWLR 234 Re Burman's Caveat [1994] 1 Qd R 123 Rising Developments Pty Ltd v Hoskins (1996) 39 NSWLR 157 Riverlate Properties Pty Ltd v Paul [1975] Ch 133 Taylor v Johnson (1981-1982) 151 CLR 422 Thomas Bates Ltd v Wyndham's Ltd [1981] 1 WLR 505 Venios v Machon (12986) 3 BCL 171 Wright v Bridge Wholesale Acceptance Corporation (Australia) Ltd [1993] 1 VR 502

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : PINDAN PTY LTD -v- SUNNY'S REDEVELOPMENT PTY LTD & ANOR [2001] WASC 104 CORAM : MURRAY J HEARD : 04 APRIL 2001 DELIVERED : 30 APRIL 2001 FILE NO/S : CIV 1362 of 2001 BETWEEN : PINDAN PTY LTD (ACN 009 009 072)

Plaintiff

AND

SUNNY'S REDEVELOPMENT PTY LTD (ACN 079 804 747)

First Defendant

THE REGISTRAR OF TITLES

Second Defendant

Catchwords:

Caveat - Caveat lodged pursuant to a building contract providing caveatable interest by way of charge granted by the owner to the builder to secure unpaid monies under the contract - Compromise agreement made - Dispute over money properly payable under compromise…

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: [2001] WASC 104
Decision Date

CaseChat Overview and Summary

The case of Pindan Pty Ltd v Sunny's Redevelopment Pty Ltd, heard by Murray J in the Supreme Court of Western Australia, concerns a dispute over a caveat lodged by Pindan Pty Ltd over certain strata lots. The dispute revolves around the balance of convenience and the maintenance of a secured fund. Pindan, the plaintiff, lodged a caveat over the land to prevent dealing in the land absolutely, as it had a caveatable interest under the building contract with Sunny's Redevelopment Pty Ltd, the defendant. The dispute between the parties is over the amount of money owed under the compromise agreement made between the parties. The court was required to decide whether the caveat should be extended pending the resolution of the dispute and whether the balance of convenience favoured the removal of the caveat, conditional upon the establishment of a fund to secure the disputed sum.

The court held that the demonstration of a caveatable interest would ordinarily secure the extension of the operation of the caveat unless it appeared to be clear that it could be removed without sacrificing the security provided by the caveat. In this case, the court found that the creation of a special trust account, as proposed by the defendant, would provide adequate security as an alternative to reliance upon the charge under the building contract. Therefore, the court decided to extend the operation of the caveat until the fund was established. Upon presentation of evidence to that effect to the second defendant, the caveat could be discharged in respect of the whole of the land presently covered.

Orders