Shaw v Yarranova Pty Ltd

The case of Shaw v Yarranova Pty Ltd involved a dispute regarding the removal of a caveat from real property, the requirements of an application to remove the caveat, and the implications of the Domestic Building Contracts Act 1995 on the vendor's ability to seek payment of the balance of the purchase price. The matter was heard in the Supreme Court of Victoria. The primary legal issue before the court was whether an application to remove a caveat under section 90(3) of the Transfer of Land Act 1958 could be made by summons on an interlocutory basis. Additionally, the court had to determine if the vendor was precluded from seeking payment of the balance of the purchase price by section 42 of the Domestic Building Contracts Act 1995.

The court examined the nature of the application to remove a caveat and found that such applications are typically made by summons on an interlocutory basis. It was held that the statutory requirement of an affidavit in support of an application to remove a caveat is mandatory, and in this case, the applicant had not complied with this requirement. The court further considered whether the vendor was prevented from seeking payment of the balance of the purchase price by section 42 of the Domestic Building Contracts Act 1995, which provides that a vendor cannot demand payment unless the purchaser has failed to comply with the contract. The court found that the vendor was not precluded from seeking payment of the balance of the purchase price, as the issue was not one of compliance but rather a dispute over the terms of the contract.

The court concluded that the application to remove the caveat was not properly made due to the failure to comply with the requirement to provide an affidavit in support of the application. Additionally, it was held that the vendor was not prevented from seeking payment of the balance of the purchase price by section 42 of the Domestic Building Contracts Act 1995. The orders made by the court were that the application to remove the caveat be dismissed due to the procedural non-compliance and that the vendor was entitled to seek payment of the balance of the purchase price.