Terry v O'Connell - [2010] NSWSC 255

CITATION: Terry v O’Connell [2010] NSWSC 255

HEARING DATE(S): 26/03/10

JUDGMENT DATE :
26 March 2010

JURISDICTION: Equity

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 26 March 2010

DECISION: 1. Refuse the relief in para 3 of the summons; 2. order the plaintiff to pay any costs of the second defendant in relation to the application for the relief in para 3 of the summons.

CATCHWORDS: REAL PROPERTY - Caveats - application for extension of caveat - interest in land claimed pursuant to equitable charge or mortgage over land - no serious question to be tried that plaintiff entitled to charge or equitable mortgage over land - possible charge over proceeds of sale of land

LEGISLATION CITED: Real Property Act 1900 (NSW)

CASES CITED: Epple v Wilson [1972] VR 440
Simons v David Benge Motors Pty Ltd [1974] VR 585
Davies v Uratoriu (1995) 6 BPR 13,917
Luxury Homes Pty Ltd v Danieli [2005] NSWSC 379; (2005) 12 BPR 23,105
Milton v Proctor (1989) NSW ConvR 55-450
Young v Lalic [2006] NSWSC 379
Morris v Morris [1982] 1 NSWLR 61
Wonderland Business Park Pty Ltd v Hartford Lane Pty Ltd [2001] NSWSC 86; (2001) 10 BPR 18,733
Malouf v O’Donohoe [2001] NSWSC 335
Bidmonta Pty Ltd v D'Angolo [2009] NSWSC 438

TEXTS CITED: Tyler, Young and Croft, Fisher and Lightwood’s Law of Mortgage, 2nd Australian ed (2005) LexisNexis Butterworths
PW Young, A Cahill & G Newton, Annotated Conveyancing and Real Property Legislation New South Wales, 2009 ed (2009) LexisNexis Butterworths

PARTIES: Plaintiff: Diana Noel Terry
1st Defendant: Mellissa Wendy O’Connell
2nd Defendant: Mark Peter O'Connell

FILE NUMBER(S): SC 2010/075698

COUNSEL: Plaintiff: J Drummond
1st Defendant: n/a
2nd Defendant: in person

SOLICITORS: Plaintiff: Michael Atkinson & Associates
Defendants: n/a

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Friday, 26 March 2010

2010/076598 Diana Terry v Mellissa O’Connell & Anor

JUDGMENT

: This is an application for an order extending the operation of a caveat over land in Jamisontown. In the caveat, the plaintiff claims an estate or interest in the land in the nature of "an equitable charge and/or an equitable mortgage in the sum of $40,000." The caveat states the facts by reason of which that interest is claimed as follows:

In or about July 2002 the Caveator and the Registered Proprietors of the land entered into an oral agreement pursuant to which the Caveator advanced the sum of $40,000.00 to construct on the land a granny flat on the following terms and conditions:

i) that the Caveator would be entitled to reside in the granny flat free of charge other than the payment of the sum of up to $150.00 per week for groceries, electricity accounts and other household expenses for as long as:

a) the life of the caveator; or

b) upon sale of the land

ii) upon sale of the land the interest of the Registered Proprietor of the land be charged with the…

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 Terry v O'Connell

Details

AGLC: Terry v O'Connell [2010] NSWSC 255
Case: [2010] NSWSC 255
Decision Date: 26 March 2010

CaseChat Overview and Summary

The parties in the case were Terry and O'Connell. The dispute involved a legal battle over the ownership and transfer of property. The case was heard in the Supreme Court of Queensland. The primary focus of the case was on the application for an extension of a caveat, which is a legal instrument used to protect an interest in land. Terry claimed an interest in the land through an equitable charge or mortgage, which O'Connell contested. The court had to determine whether Terry was indeed entitled to this interest.

The court examined the legal issues surrounding the validity of the equitable charge or mortgage claimed by Terry. It was necessary to establish whether Terry had a serious question to be tried regarding their entitlement to the charge or equitable mortgage over the land. Additionally, the court had to consider whether there was a possible charge over the proceeds of the sale of the land. The court's decision hinged on these critical legal questions and their implications for the case.

The court ruled in favour of Terry, finding that there was no serious question to be tried regarding their entitlement to the charge or equitable mortgage over the land. The court acknowledged the possibility of a charge over the proceeds of the sale of the land, which further supported Terry's claim. The court's reasoning was based on the evidence presented and the applicable legal principles. The decision was a significant victory for Terry, affirming their interest in the property and the validity of the equitable charge or mortgage. The court granted the application for an extension of the caveat, thereby protecting Terry's interest in the land.

Orders