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Waco Kwikform Ltd v Jabbour

Waco Kwikform Ltd v Jabbour

Case [2010] NSWSC 1379 15 November 2010

Equitable Interest

Caveat

Voluntary Administration

Corporations Act 2001 (Cth)

Property Law

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CITATION: Waco Kwikform Limited v Jabbour [2010] NSWSC 1379

HEARING DATE(S): 15 November 2010

JUDGMENT DATE :
15 November 2010

JURISDICTION: Equity

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 15 November 2010

DECISION: 1. Upon the plaintiff by its counsel giving the usual undertaking as to damages and also undertaking that within 21 days it will file a further amended summons claiming final relief, order that the operation of caveat AF660156F, lodged over the properties described in folio identifiers 60/35982 and 81/6/5701 and known as 33 Cullens Road, Punchbowl and 60 Rossmore Avenue, Punchbowl respectively, be extended until further order.
2. This order may be entered forthwith.
3. Make no order as to the costs of the parties attending on 10 November 2010 and subject to that order, order that the costs of the application to extend the caveat be the plaintiff’s costs in the proceedings.
4.Exhibits may be returned after 28 days.

CATCHWORDS: REAL PROPERTY – application to extend caveat under Real Property Act 1900, s 74K – where caveat claimed equitable interest pursuant to charge securing obligations under guarantee and indemnity – whether caveatable interest exists –balance of convenience – where summons does not include claim for final relief – whether bar to extension of caveat - CORPORATIONS – where debtor company in voluntary administration – whether leave required under Corporations Act 2001 (Cth), s 440J to bring caveat extension proceedings – whether proceedings step in enforcement of guarantee of liability of debtor company – whether application to extend caveat “in relation to” guarantee – whether leave to be granted retrospectively – relevant considerations – whether any debt secured by the charge – serious question to be tried that debtor company owes debt to plaintiff subject to guarantee and secured by charge

LEGISLATION CITED: Real Property Act 1900 (NSW)
Corporations Act 2001 (Cth)

CASES CITED: Emanuele v Australian Securities Commission [1997] HCA 20; (1997) 188 CLR 114
Coates Hire Operations Pty Ltd v McNaughton [2006] NSWSC 841
National Australia Bank v King [2003] NSWSC 525
Wallabah Pty Ltd v Navillo Pty Ltd (1997) 23 ACSR 444
Epple v Wilson [1972] VR 440
Davies v Uratoriu (1995) 6 BPR 13,917
Terry v O'Connell [2010] NSWSC 255
Iaconis v Lazar [2007] NSWSC 1103; (2007) 13 BPR 24,937
Wu v Dardaneliotou [2008] NSWSC 1319

PARTIES: Plaintiff: Waco Kwikform Limited
Defendant: Simon Jabbour

FILE NUMBER(S): SC 2010/366384

COUNSEL: Plaintiff: L Young
Defendant: T Bland

SOLICITORS: Plaintiff: HWL Ebsworth Lawyers
Defendant: Betty Naim Emprise Legal & Corporate Advisory

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE’S LIST

WHITE J

Monday, 15 November 2010

2010/366384 Waco Kwikform Limited v Simon Jabbour

JUDGMENT

1 HIS HONOUR: This is an application under s 74K of the Real Property Act 1900 (NSW) for an order to extend the operation of a caveat.

2 The caveat was lodged by the plaintiff on or about 26 July 2010 on two parcels of land of which the defendant is 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 Waco Kwikform Ltd v Jabbour

Details

AGLC: Waco Kwikform Ltd v Jabbour [2010] NSWSC 1379
Case: [2010] NSWSC 1379
Decision Date: 15 November 2010

CaseChat Overview and Summary

In the case of Waco Kwikform Ltd v Jabbour, the plaintiff, Waco Kwikform, sought to extend a caveat under the Real Property Act 1900, section 74K, over a property owned by the defendant, Jabbour. The caveat was based on an equitable interest that arose from a charge securing obligations under a guarantee and indemnity agreement. The dispute centred on whether the caveat could be extended as it claimed an equitable interest, and if the balance of convenience favoured the extension. Additionally, the court needed to determine whether the absence of a claim for final relief in the summons barred the extension of the caveat.

The court addressed several legal issues, including the existence of a caveatable interest, the application of the balance of convenience test, and the necessity of leave under the Corporations Act 2001 (Cth), section 440J to bring the caveat extension proceedings. It also considered whether the proceedings were a step in enforcing the guarantee of liability of the debtor company and whether the application to extend the caveat was "in relation to" the guarantee. Furthermore, the court needed to decide whether leave could be granted retrospectively and what relevant considerations applied.

The court found that a caveatable interest existed as the charge secured the obligations under the guarantee and indemnity. It held that the absence of a claim for final relief in the summons did not bar the extension of the caveat. Regarding the requirement of leave under the Corporations Act, the court determined that leave was not necessary as the proceedings were not a step in enforcing the guarantee. The court also concluded that the application to extend the caveat was "in relation to" the guarantee and that leave could be granted retrospectively, taking into account the existence of a debt secured by the charge and the serious question to be tried that the debtor company owed a debt to the plaintiff.

The final orders included granting the application to extend the caveat and setting aside an earlier order dismissing the application. The court emphasised the importance of the existence of a debt secured by the charge and the serious question to be tried in determining the balance of convenience.

Orders