Ron Medich Properties Pty Ltd v McGurk - [2010] NSWSC 552

CITATION: Ron Medich Properties Pty Limited v McGurk [2010] NSWSC 552

HEARING DATE(S): 26 May 2010

JUDGMENT DATE :
26 May 2010

JURISDICTION: Equity Division

JUDGMENT OF: Palmer J

EX TEMPORE JUDGMENT DATE: 26 May 2010

DECISION: Caveat not extended; leave under s 74O refused; injunction refused; adjournment refused.

CATCHWORDS: CAVEAT – DEFECT – whether caveator’s claimed interest as equitable mortgagee by subrogation sufficiently described in caveat as “constructive trust” – whether defect fatal. - LEAVE UNDER s 74O – whether new caveat would be abuse of caveat procedure – no evidence from caveator’s director – two previous and contradictory statements of director as to transaction. - PROCEDURE – whether, at conclusion of hearing, adjournment should be granted to allow new evidence.

LEGISLATION CITED: - Real Property Act 1900 (NSW) – s74F(5)(b), s74K, s74O
- Real Property Act Regulations 2008 (NSW) – Schedule 3 Clause 7

CATEGORY: Principal judgment

CASES CITED: - Butler v Rice [1910] 2 Ch 277
- Circuit Finance Pty Ltd v Crown & Gleeson Securities Pty Ltd (2005) 12 BPR 23,403
- Depsun Pty Ltd v Tahore Holdings Pty Ltd (1990) 5 BPR 11,314
- Ghana Commercial Bank v Chandiram [1960] AC 732
- Hanson Construction Materials Pty Ltd v Vimwise Civil Engineering Pty Ltd (2005) 12 BPR 23,355
- Leros Pty Ltd v Terara Pty Limited (1992) 174 CLR 407

PARTIES: Ron Medich Properties Pty Ltd (Plaintiff)
Kimberley Francis Ann McGurk (Defendant)

FILE NUMBER(S): SC 2010/080891

COUNSEL: J.C. Kelly SC (Plaintiff)
F. Kunc SC (Defendant)

SOLICITORS: Bamford Lawyers (Plaintiff)
Uther Webster & Evans (Defendant)

2010/080891 Ron Medich Properties Pty Limited v McGurk

JUDGMENT – Ex tempore

26 May , 2010

Introduction

1 The Plaintiff, Ron Medich Properties Pty Limited (“RMP”) seeks an order under s 74K of the Real Property Act 1900 (NSW) extending the operation of a caveat which it has lodged against land owned by the Defendant, Mrs McGurk. Alternatively, the Summons seeks an order pursuant to s 74O of the Real Property Act for an order granting leave to RMP to lodge a further caveat in relation to the property.

2 Further or in the alternative, the Summons seeks an order restraining Mrs McGurk from discharging a mortgage presently registered against the title to the property.

3 The caveat, in Schedule 1, describes the estate or interest in the land claimed by RMP as follows. Under the heading “Nature of the estate or interest in the land”, appears “equitable interest pursuant to a constructive trust”. Under the heading “By virtue of the facts stated below” appears “use of the caveator’s funds to acquire an interest in the property”.

4 The description in Schedule 1 would lead the reader to conclude that RMP was claiming a constructive trust arising from the fact that Mrs McGurk, as registered proprietor, had used RMP’s funds to acquire, by way of purchase or otherwise, some undefined interest in the property and that, by some circumstance not identified, she held that interest,…

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: [2010] NSWSC 552
Decision Date: 26 May 2010

CaseChat Overview and Summary

In the case of Ron Medich Properties Pty Ltd v McGurk, the dispute involved the validity of a caveat lodged by the plaintiff, Ron Medich Properties, over a property. The defendant, McGurk, contested the caveat's validity, arguing it was defectively described. The matter was heard in the Federal Court of Australia. The plaintiff claimed that the description of its interest as an equitable mortgagee by subrogation, stated as a "constructive trust," was sufficient. The defendant contended that the description was insufficient, rendering the caveat ineffective. Additionally, the plaintiff sought leave to lodge a new caveat under section 74O, which the defendant argued would be an abuse of the caveat procedure due to the lack of evidence from the plaintiff's director and contradictory statements made previously.

The court needed to determine whether the description of the plaintiff's interest in the caveat was sufficient and whether the defect was fatal. It also had to consider whether the plaintiff's application for leave to lodge a new caveat under section 74O constituted an abuse of the caveat procedure. Furthermore, the court had to decide whether an adjournment should be granted at the conclusion of the hearing to allow the plaintiff to present new evidence.

The court found that the description of the plaintiff's interest in the caveat was insufficient and that the defect was indeed fatal, rendering the caveat ineffective. However, it held that the application for leave to lodge a new caveat was not an abuse of the caveat procedure, given the absence of evidence from the plaintiff's director and the contradictory statements. The court also concluded that an adjournment should be granted to allow the plaintiff to present new evidence. Consequently, the court dismissed the plaintiff's claim for relief and ordered that the caveat be removed from the register. The plaintiff was also granted leave to lodge a new caveat, subject to the production of appropriate evidence.

Orders