Stonebark Pty Ltd v Disage Pty Ltd - [2022] NSWSC 1015

Supreme Court

New South Wales

Medium Neutral Citation: Stonebark Pty Ltd v Disage Pty Ltd [2022] NSWSC 1015
Hearing dates: 21 July 2022
Date of orders: 21 July 2022
Decision date: 21 July 2022
Jurisdiction: Equity - Duty List
Before: Black J
Decision:
Caveat to lapse after 21 July 2022. Plaintiff to pay the defendant’s costs of and incidental to the hearing, as agreed or as assessed. Matter listed in the Equity Registrar's List on 28 July 2022.

Catchwords:
LAND LAW — Caveats — Extension of operation of caveat — Summons must seek final relief — Where plaintiff seeks an extension of operation of a caveat or, alternatively, leave to lodge a further caveat — Where plaintiff sought a declaration that it has a caveatable interest in the property as final relief — Whether the summons properly identified the final relief sought by the plaintiff.

Legislation Cited:
Duties Act 1997 (NSW), s 304
Real Property Act 1900 (NSW) s 74H, s 74J, s74K, s 74L, s 74O

Cases Cited:
Bellissimo v JCL Investments Pty Ltd [2009] NSWSC 1260
Break Fast Investments Pty Ltd v C & O Voukidis Pty Ltd
Circuit Finance Pty Ltd v Crown and Gleeson Securities Pty Ltd [2005] NSWSC997
Delaforce v Simpson‑Cook (2010) 78 NSWLR 483; [2010] NSWCA 84
GE Capital Finance Pty Ltd v Sunset Investments Pty Ltd [2005] NSWSC 1205
Jones v Baker [2002] NSWSC 89
Mayrin DM v Deng [2019] NSWSC 1552
Multi-Span Constructions No 1 Pty Ltd v 14 Portland Street Pty Ltd [2002] ANZ Conv R 85, Depsun Pty Ltd v Tahore Pty Ltd (1990) ANZ Conv R 334
Muschinski v Dodds (1985) 160 CLR 583
Peters v Lithgow Forge Pty Ltd [2010] NSWSC 283
Windella (NSW) Pty Ltd v Hughes (1999) 49 NSWLR 158; [1999] NSWSC 1129
Wu v Dardaneliotou [2008] NSWSC 1319

Category: Principal judgment
Parties: Stonebark Pty Limited (Plaintiff)
Disage Pty Limited (Defendant)
Representation:
Counsel:
M Collins (Plaintiff)
A Vernier (Defendant)
Solicitors:
O’Hearn Lawyers (Plaintiff)
Catalyst Legal (Defendant)

File Number(s): 2022/203007

Judgment – EX TEMPORE (REVISED 26 July 2022)

Nature of the application

By Summons filed on 11 July 2022 the Plaintiff, Stonebark Pty Ltd (“Stonebark”) sought an order, under s 74K of the Real Property Act 1900 (NSW) that the operation of a caveat on a property at North Rothbury in New South Wales be extended until further order of the Court or, alternatively, that leave be granted under s 74O of the Real Property Act for Stonebark to lodge a further caveat on title of the property. Stonebark sought, by way of final relief, only a declaration that it has a caveatable interest in the property. That has had unfortunate, and wholly avoidable, consequences for the result of the application.
On 13 July 2022, by agreement of the parties, but without any evidence being led and without any determination on the merits, Slattery J extended the caveat until further order of the Court, rather than to a fixed date. The matter was relisted today…

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: [2022] NSWSC 1015
Decision Date: 21 July 2022

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Stonebark Pty Ltd brought a case against Disage Pty Ltd concerning the validity and extension of a caveat over certain land. Stonebark sought an extension of the operation of the caveat or, in the alternative, leave to lodge a further caveat, and a declaration that it had a caveatable interest in the property. Disage contested the application on the basis that the summons did not properly identify the final relief sought by Stonebark.

The court needed to determine whether the summons was valid and whether it properly identified the final relief sought by Stonebark. In this context, the court examined the requirements set out in the *Caveats Act* and case law regarding the need for a summons to seek final relief. The court considered whether a declaration of a caveatable interest constituted the final relief Stonebark was seeking.

The court held that the summons did not properly identify the final relief sought by Stonebark, as it did not specify a clear and final outcome that the court could grant. The court emphasised that for a summons to be valid, it must seek final relief that the court can directly grant. In this case, the declaration of a caveatable interest was not the final relief that the court could directly grant, as it did not resolve the matter of the caveat's validity or extension. The court concluded that the summons was defective as it did not meet the statutory requirement of seeking final relief. Consequently, the application was dismissed.

Orders