Summit Acceptance Pty Ltd v Wild - [2011] NSWSC 659

Supreme Court

New South Wales

Medium Neutral Citation: Summit Acceptance Pty Ltd v Wild [2011] NSWSC 659
Decision date: 18 May 2011
Before: White J
Decision:
Refer to paras [34], [35] and [36] of judgment.

Catchwords: REAL PROPERTY - caveat - application to lodge a fresh caveat under s 74O of the Real Property Act 1900 - where plaintiff claims an interest as chargee under lease agreement and guarantee - where plaintiff obtained judgment in Local Court for amount owing by the defendant under the guarantee and for costs of the application - serious question to be tried that the charge exists and secures the obligations of the defendant under Local Court judgment - balance of convenience favours maintenance of caveat as plaintiff may be put in position of unsecured creditor if left to remedies as judgment creditor - where plaintiff does not claim for final relief in application for maintenance of caveat - plaintiff entitled to leave under s 74O if proffers an undertaking to the court to amend summons to seek final relief, at least in form of a declaration that plaintiff entitled to charge over defendant's property
Legislation Cited: Real Property Act 1900
Civil Procedure Act 2005
Conveyancing Act 1919
Cases Cited: Iaconis v Lazar [2007] NSWSC 1103
Wu v Dardaneliotou [2008] NSWSC 1319
Waco Kwikform Limited v Jabbour [2010] NSWSC 1379
Category: Interlocutory applications
Parties: Summit Acceptance Pty Ltd (Plaintiff)
Brett Allan Wild (1st Defendant)
Charmain Linden Smith (2nd Defendant)
Representation: D K G Milne (Solicitor for Plaintiff)
In Person (1st Defendant)
David Milne & Associates (Plaintiff)

File Number(s): 2011/130512

Judgment

HIS HONOUR: The first and second defendants are the registered proprietors as joint tenants of land in Springvale Road, Elderslie. On or about 21 August 2009 the plaintiff lodged a caveat in respect of that land claiming an interest as chargee pursuant to a lease agreement and guarantee dated 5 November 2008 between the plaintiff, the first defendant (Mr Brett Wild) and Boltak Interstate Hauliers Pty Ltd.

On or about 5 April 2011 the plaintiff received a lapsing notice in respect of that caveat. The plaintiff filed a summons on 20 April 2011. The only relief sought in the summons other than costs was an order that the caveat be extended until further order. On 27 April 2011 the plaintiff filed an amended summons. Instead of seeking an order for extension of a caveat, it now seeks an order pursuant to s 74O(2) of the Real Property Act 1900 that it be given leave to lodge a fresh caveat.

The caveat the plaintiff now seeks to lodge claims an interest as chargee over the interest in the land of Mr Wild only, by virtue of the same instrument as was referred to in the previous caveat. The interest is said to arise by virtue of clause 12 of that instrument whereby Brett Wild as guarantor charged all his rights, title and interest in the property with the payment of all moneys payable by him to…

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.

Continue reading Summit Acceptance Pty Ltd v Wild

Details

AGLC: Summit Acceptance Pty Ltd v Wild [2011] NSWSC 659
Case: [2011] NSWSC 659
Decision Date: 18 May 2011

CaseChat Overview and Summary

Summit Acceptance Pty Ltd, the plaintiff, sought to lodge a fresh caveat over certain property owned by Wild, the defendant, under section 74O of the Real Property Act 1900. The dispute arose from a lease agreement and a guarantee, where the plaintiff claimed an interest as chargee. The plaintiff had previously obtained a judgment in the Local Court for the amount owing by the defendant under the guarantee, along with costs of the application. The plaintiff argued that there was a serious question to be tried regarding the existence of the charge and its security over the defendant's obligations under the Local Court judgment. Additionally, the balance of convenience favoured maintaining the caveat, as the plaintiff might otherwise be left as an unsecured creditor if they were restricted to remedies as a judgment creditor.

The court had to decide whether the plaintiff was entitled to lodge a fresh caveat under section 74O. The legal issues included the existence and validity of the charge, the seriousness of the question to be tried, and whether the balance of convenience favoured maintaining the caveat. The court found that there was indeed a serious question to be tried concerning the charge and its security over the defendant's obligations. Furthermore, the balance of convenience favoured maintaining the caveat to prevent the plaintiff from being left as an unsecured creditor. However, the plaintiff was not seeking final relief in the application for the maintenance of the caveat, only permission to lodge the fresh caveat.

The court granted the plaintiff leave to lodge a fresh caveat, provided that the plaintiff proffered an undertaking to amend the summons to seek final relief, at least in the form of a declaration that the plaintiff was entitled to the charge over the defendant's property. The court determined that the plaintiff was entitled to this relief if the conditions were met. This outcome balanced the interests of both parties, ensuring that the plaintiff could protect its interest while also allowing the defendant to challenge the validity of the charge in the appropriate proceedings. The court's decision was thus a careful balancing act, ensuring procedural fairness and the protection of both parties' rights.

Orders