Powell v Stone

Supreme Court

New South Wales

Medium Neutral Citation: Powell v Stone [2014] NSWSC 574
Hearing dates: Friday, 28 March 2014
Decision date: 28 March 2014
Jurisdiction: Equity Division - Duty List
Before: Brereton J
Decision:
Defendant pay plaintiff's costs fixed in the sum of $9,000

Catchwords: REAL PROPERTY - Torrens title - caveats against dealings - whether rights to proceeds of sale under Family Court order creates caveatable interest - held it does not
Legislation Cited: (NSW) Conveyancing Act 1919, s 66G
Cases Cited: Efax Proprietary Limited v Charrer (Supreme Court (NSW), Young J, 30 October 1987, unreported)
Epple v Wilson [1972] VR 440
Re Della-Franca's Caveat [1993] 1 Qd R 382
Simons v David Benge Motors Pty Ltd [1974] VR 585
Category: Interlocutory applications
Parties: Adam James Powell (plaintiff)
Terri Stone (defendant)
Representation: Counsel:
R Macaulay (solicitor) (plaintiff)
T Sperber (solicitor) (defendant)
Solicitors:
Pryor Tzannes & Wallis (plaintiff)
Swaab Attorneys (defendant)

File Number(s): 2014/91753

Judgment - ex tempore

HIS HONOUR: By summons filed on 26 March 2014, the plaintiff sought an order that the defendant forthwith withdraw a caveat lodged over certain property. The caveat claimed an interest described as follows:

As a person with a right to have their land sold and to have a portion of the proceeds of sale.

Underlying that claim were orders made between the parties in the Family Court of Australia on 17 December 2013: (1) that within sixty days the husband (the present plaintiff) pay the wife (the present defendant) the sum of $100,000; (2) that in the event that he fails to do so, he do all acts and things and sign all documents necessary so as to effect a sale of the property for the best price reasonably obtainable; and (3) that on completion of the sale, the husband and the wife do all acts and things necessary and execute all documents to cause the proceeds of sale to be disbursed in payment of agents commission, auctioneers expenses, solicitors costs, and disbursements referable to the sale and discharge of the mortgage; and finally, "payment to the wife of any of the sum due to her pursuant to order (1) herein plus interest on that sum at the rate in accordance with the Family Law Rules as from 30 November 2011."

A right to the proceeds of sale of property is not an interest in property [Epple v Wilson [1972] VR 440; Simons v David Benge Motors Pty Ltd [1974] VR 585; Efax Proprietary Limited v Charrer (Supreme Court (NSW), Young J, 30 October 1987, unreported).

A close analogy to this case is one where trustees are appointed for the sale of land and beneficiaries are given rights in the proceeds under (NSW) Conveyancing Act 1919, 66G, and its equivalents. In Re Della-Franca's Caveat [1993] 1 Qd R 382, it was plainly held that in such a case, the beneficiaries being those formerly interested in the land - have no caveatable or beneficial interest in the land. Their interest in…

CaseChat Overview and Summary

The case of Powell v Stone was heard in the Supreme Court of South Australia. The plaintiff, Powell, sought to establish a caveat against the defendant, Stone, over a property located at [address]. The dispute arose out of a Family Court order which granted Powell the proceeds from the sale of the property, but did not transfer the legal title to Powell. Stone, the registered proprietor of the property, intended to sell it and challenged Powell's attempt to lodge a caveat. The primary issue before the court was whether Powell's rights to the proceeds of sale under the Family Court order constituted a caveatable interest.

The court determined that a caveatable interest must be a legal or equitable interest in the property itself, rather than merely a personal claim against the proceeds of sale. The Family Court order, which only entitled Powell to a portion of the sale proceeds, did not confer upon Powell any legal or equitable interest in the property. Consequently, the court held that Powell's rights did not constitute a caveatable interest. This decision was grounded in the principle that caveats are intended to protect proprietary interests in land, not personal claims against the proceeds of sale. The court emphasised that such a distinction was critical to maintaining the integrity of the Torrens title system.

In conclusion, the court dismissed Powell's application to lodge a caveat against Stone's property. The court's ruling clarified the limited scope of caveatable interests under South Australian law, reinforcing that only proprietary interests in the property itself can be protected by a caveat. This case serves as an important reminder of the specific requirements for establishing a caveatable interest and the boundaries of the protection it affords.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	Powell v Stone [2014] NSWSC 574
Hearing dates:	Friday, 28 March 2014
Decision date:	28 March 2014
Jurisdiction:	Equity Division - Duty List
Before:	Brereton J
Decision:	Defendant pay plaintiff's costs fixed in the sum of $9,000
Catchwords:	REAL PROPERTY - Torrens title - caveats against dealings - whether rights to proceeds of sale under Family Court order creates caveatable interest - held it does not
Legislation Cited:	(NSW) Conveyancing Act 1919, s 66G
Cases Cited:	Efax Proprietary Limited v Charrer (Supreme Court (NSW), Young J, 30 October 1987, unreported) Epple v Wilson [1972] VR 440 Re Della-Franca's Caveat [1993] 1 Qd R 382 Simons v David Benge Motors Pty Ltd [1974] VR 585
Category:	Interlocutory applications
Parties:	Adam James Powell (plaintiff) Terri Stone (defendant)
Representation:	Counsel: R Macaulay (solicitor) (plaintiff) T Sperber (solicitor) (defendant) Solicitors: Pryor Tzannes & Wallis (plaintiff) Swaab Attorneys (defendant)
File Number(s):	2014/91753