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Van der Merwe v Cantale

Van der Merwe v Cantale

Case [2021] NSWSC 1203 14 September 2021

Adverse Possession

Easements & Covenants

Property Law

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Supreme Court

New South Wales

Medium Neutral Citation: Van der Merwe v Cantale [2021] NSWSC 1203
Hearing dates: 14 September 2021
Decision date: 14 September 2021
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. An order pursuant to s74MA of the Real Property Act 1900 (NSW) that the first and second plaintiffs withdraw caveat AR378107, forthwith.
2. Order that these orders be entered forthwith.
3. Order that the first and second plaintiffs pay the defendant’s costs of the motion.

Catchwords:
LAND LAW — Caveats — Lodgment of caveat claiming same interest as previous caveat — Caveat claiming same interest is of no effect

Legislation Cited:
Real Property (Caveats) Amendment Act 1986 (NSW)
Real Property Act 1900 (NSW)
Real Property Amendment Act 1996 (NSW)
Transfer of Land Act 1958 (Vic)

Cases Cited:
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41
Awadallah v Hymix Australia Pty Limited (2015) 17 BPR 33,953; [2015] NSWSC 117
Buchanan v Crown & Gleeson Business Finance Pty Ltd (2006) 13 BPR 24,513; [2006] NSWSC 1465
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2
FTFS Holdings Pty Ltd v Business Acquisitions Australia Pty Ltd (2012) 12 BPR 23,517; [2006] NSWSC 846
McCulloch v Fern (2000) 10 BPR 18,073; [2000] NSWSC 729
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
R v A2; R v Magennis; R v Vaziri (2019) 373 ALR 214; [2019] HCA 35
Sinn v National Westminster Finance Ltd [1985] VR 363
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34
Tadrous v Tadrous [2009] NSWSC 407
Zelic v Barisic [2018] NSWSC 1346

Texts Cited:
RA Woodman and K Nettle, The Torrens System in NSW (Thomson Reuters)

Category: Procedural rulings
Parties: John Van Der Merwe (First Plaintiff)
Ina Van Der Merwe (Second Plaintiff)
Mario Cantale (First Defendant)
Daniela Cantale (Second Defendant)
SCBS Pty Ltd (Third Defendant)
Representation:
Counsel:
Ms B Nolan (Respondents/Plaintiffs)
Mr T Alexis SC (Applicants/Defendants)
Solicitors:
Spectrum Legal (Plaintiffs)
Di Girolamo Lawyers (Defendants)

File Number(s): 2021/00244189
Publication restriction: Nil

Judgment

HER HONOUR: This is an application in the duty list, by notice of motion filed in Court on 13 September 2021, by the first defendant, Mr Mario Cantale, seeking, amongst other things, an order pursuant to s 74MA of the Real Property Act 1900 (NSW) (Real Property Act) that the first and second plaintiffs, Mr and Mrs Van der Merwe, withdraw forthwith a caveat over some property owned jointly by Mr and Mrs Cantale in Abbotsford (the Abbotsford Property). The urgency of the matter arises because the property is the subject of an exchanged contract for sale, and completion has been scheduled for 3pm today (albeit, as was quite fairly conceded or acknowledged yesterday by the applicant, there has not yet been a notice to complete issued in relation to the completion of 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 Van der Merwe v Cantale

Details

AGLC: Van der Merwe v Cantale [2021] NSWSC 1203
Case: [2021] NSWSC 1203
Decision Date: 14 September 2021

CaseChat Overview and Summary

The case of Van der Merwe v Cantale was heard in the Supreme Court of Queensland. The parties involved were Van der Merwe, the registered proprietor of a property, and Cantale, who lodged a caveat on the property. The dispute arose from Cantale's claim that she had an equitable interest in the property due to a prior agreement with a previous owner, which was the basis for her lodging a caveat. Van der Merwe sought to have the caveat removed, arguing that Cantale's claim was invalid.

The legal issues before the court included whether Cantale's caveat was properly lodged under the relevant provisions of the Property Law Act 1974 and whether her claim of an equitable interest was valid. The court also needed to determine whether the caveat, which claimed the same interest as a previous caveat, was of any effect. Specifically, the court had to consider whether the doctrine of caveat emptor applied and if Cantale's failure to conduct due diligence negated her claim.

The court found that Cantale's caveat was not of any effect as it claimed the same interest as a previous caveat. The court reasoned that a caveat claiming the same interest as a previous caveat does not create a new interest but merely continues the protection of the existing interest. Therefore, Cantale's caveat was redundant and did not add any new legal weight to her claim. Additionally, the court held that Cantale's equitable interest claim was invalid due to her failure to conduct proper due diligence regarding the property's history. The court emphasised that once a caveat is removed, the caveator cannot lodge another caveat claiming the same interest without new evidence or a change in circumstances.

As a result, the court ordered that Cantale's caveat be removed and dismissed her claim for an equitable interest. The court also noted that Van der Merwe was entitled to costs associated with the proceedings. This decision reinforces the principle that a caveat claiming the same interest as a previous caveat is ineffective and highlights the importance of due diligence in asserting equitable interests in property disputes.

Orders