Szanto v Bainton - [2011] NSWSC 278

Supreme Court

New South Wales

Medium Neutral Citation: Szanto v Bainton & Ors [2011] NSWSC 278
Decision date: 12 April 2011
Before: White J
Decision:
1.Order that the order made on 2 March 2011 extending the operation of caveat AF470369V be discharged. This order may be entered forthwith.
2.Direct that the plaintiff file and serve a further amended statement of claim by 29 April 2011, and that the defendants file and serve a defence to that statement of claim by 20 May 2011.
3.Stand the proceedings over to the Registrar's list on 25 May 2011.
4.Order that the plaintiff pay the defendants' costs of the application to extend the operation of the caveat

Catchwords: REAL PROPERTY - application to extend caveat - where plaintiff claims interest in property under contract for sale - whether defendants entitled to terminate contract - whether defect in defendants title - where serious question to be tried as to whether illegal sewer connection or omitted easement over property - mere possibility that Sydney Water may exercise statutory power to enter and do work on the property not a defect in title - special conditions preclude claim with respect to location of sewer or omitted easements - no serious question to be tried as to whether defendants entitled to terminate contract - in any event balance of convenience and inadequate undertaking as to damages would not favour extending caveat
Legislation Cited: Sydney Water Act 1994
Environmental Planning and Assessment Act 1979
Conveyancing Act 1919
Landlord and Tenant (Amendment) Act 1948
Residential Tenancies Act 2010
Cases Cited: Lew v Bluescope Distribution Pty Ltd [2010] NSWSC 794
Beyfus v Lodge [1925] Ch 350
Nottingham Patent Brick and Tile Company v Butler (1885) 15 QBD 261 at 271; (1886) 16 QBD 778
Rignall Developments Limited v Halil [1988] Ch 190
Carpenter v McGrath (1996) 40 NSWLR 39
Texts Cited: P Butt, The Standard Contract for Sale of Land in New South Wales, 2nd ed (1998)
A K Turner & R J Sutton, Actionable Non-Disclosure, 2nd ed (1990)
CCH New South Wales Conveyancing Law Commentary
Category: Interlocutory applications
Parties: Peter Szanto (Plaintiff)
Mark Jason Bainton (1st Defendant)
Claire Louise Bainton (2nd Defendant)
Troy Douglas (3rd Defendant)
Nicholas Schmidt aka Nick Levy-Schmidt (4th Defendant)
File Number(s):

JUDGMENT

HIS HONOUR : This is an application for further extension of a caveat dated 5 May 2010. The plaintiff is the caveator. The first and second defendants are the registered proprietors of the affected land. The property in question is situated in Riley Street, Woolloomooloo. The plaintiff claimed an interest described as follows:

" Option to purchase, without recourse, property described herein ".

The interest was said to arise under an instrument described as " Purchase Contract 9 March 2010 ". The facts said to give rise to the interest were described as " Purchase and Option ".

An application for extension of the caveat is approached as if the caveator were seeking an interlocutory injunction to restrain the registered proprietor from dealing with…

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 Szanto v Bainton

Details

AGLC: Szanto v Bainton [2011] NSWSC 278
Case: [2011] NSWSC 278
Decision Date: 12 April 2011

CaseChat Overview and Summary

In the matter of Szanto v Bainton, the dispute arose in the Supreme Court of New South Wales. The plaintiff sought an extension of a caveat lodged on a property, asserting an interest in the property under a contract for sale. The defendants, who were the vendors of the property, argued that the plaintiff had no right to the property and that they were entitled to terminate the contract. The defendants also contended that there was no defect in their title, and that the caveat should not be extended.

The primary legal issues before the court were whether the defendants were entitled to terminate the contract and whether there was a defect in their title. The court was required to determine whether the mere possibility that Sydney Water might exercise a statutory power to enter and do work on the property constituted a defect in title. Furthermore, the court had to consider whether the balance of convenience and the inadequacy of the undertaking as to damages favoured extending the caveat.

The court found that the mere possibility that Sydney Water might exercise a statutory power to enter and do work on the property did not constitute a defect in title. The court also held that special conditions precluded the plaintiff from claiming any interest with respect to the location of the sewer or omitted easements. The court concluded that there was no serious question to be tried as to whether the defendants were entitled to terminate the contract. Even if there were, the balance of convenience and inadequate undertaking as to damages would not favour extending the caveat. Consequently, the application for an extension of the caveat was dismissed.

The court made orders dismissing the plaintiff's application for an extension of the caveat, with the plaintiff to pay the defendants' costs of the application.

Orders