Walker v Australian Forestry Holdings Pty Ltd - [2018] NSWSC 1535

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Walker v Australian Forestry Holdings Pty Ltd [2018] NSWSC 1535
Hearing dates: 17 July 2018
Date of orders: 12 October 2018
Decision date: 12 October 2018
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. Dismiss with costs the application by the plaintiffs for leave to lodge a further caveat over the land comprising the Braidwood property (namely, the land contained in certificates of title folio identifiers 328/755911, 326/755911, 329/755911 and Auto Consol 15246-77) claiming the same estate or interest as that set out in an earlier caveat (AK239679W) which was withdrawn on 3 May 2018.
2. Order that the costs of the application by the defendant for an extension of time to serve its expert evidence be the defendant’s costs in the cause.

Catchwords:
LAND LAW — Caveats — Application to lodge a further caveat in respect of the same estate, interest or right and purporting to be based on the same facts as earlier caveat which was ordered by the Court to be withdrawn – Application refused with costs
COSTS — Application for costs of motion seeking leave for extension of time to file expert evidence which motion was ultimately determined by consent – Order that costs of the motion be the defendant’s costs in the cause
Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Real Property Act 1900 (NSW), ss 74F, 74MA, 74O
Uniform Civil Procedure Rules 2005 (NSW), r 33.3
Cases Cited: Beecham Group Laboratories Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] HCA 1
Composite Buyers Ltd v Soong (1995) 38 NSWLR 286
De Mestre v AD Hunter Pty Ltd (1952) 77 WN (NSW) 143
De Meyrick v Dimitriou [2011] NSWSC 1291
Farahbakht v Midas Australia Pty Ltd [2006] NSWSC 1323
Griffiths v Falck [2008] NSWSC 998
Hanson Construction Minerals Pty Ltd v Roberts (2016) 93 NSWLR 1; [2016] NSWCA 240
Holdcroft v Market Garden Produce Pty Ltd [2001] 2 Qd R 381; [2000] QCA 396
Iaconis v Lazar [2007] NSWSC 1103
J & H Just (Holdings) Pty Ltd v Bank of New South Wales (1975) 125 CLR 546; [1971] HCA 57
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; 110 ALR 449
Redman Construction Pty Ltd v Tarnap Pty Ltd [2005] NSWSC 1011; 12 BPR 23,395
Rejfek v McElroy (1965) 112 CLR 517; [1965] HCA 46
Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156
Schibaia v Elias [2013] NSWSC 1485
Summit Acceptance Pty Ltd v Wild [2011] NSWSC 659
Swansson v Pratt [2002] NSWSC 583; 20 ACLC 1594
Telfer v Telfer (2014) 87 NSWLR 176; [2014] NSWCA 186
Warner v Andrews [2011] NSWSC 956
Xabregas v St George Bank Ltd [2017] NSWSC 200; 18 BPR 36,885
Category: Procedural and other rulings
Parties: Stanley Roy Walker (First Plaintiff)
Jacqueline Mary Walker (Second Plaintiff)
Australian Forestry Holdings Pty Ltd (Defendant)

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.

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Details

Case: [2018] NSWSC 1535
Decision Date: 12 October 2018

CaseChat Overview and Summary

In the Federal Court, Walker brought a proceeding against Australian Forestry Holdings Pty Ltd in relation to a dispute concerning land. The primary issue was whether Walker could lodge a further caveat over the same property, following an earlier caveat that had been ordered by the Court to be withdrawn. The Court needed to decide if the application to lodge the further caveat was permissible given that it was based on the same facts as the earlier caveat. Additionally, the Court had to determine the costs associated with a motion for an extension of time to file expert evidence, which was ultimately resolved by consent.

The Court addressed the issue of the further caveat by examining the underlying facts and circumstances that supported both the initial and proposed subsequent caveats. It was established that the new caveat was essentially a reiteration of the earlier one, which had already been considered and dismissed by the Court. Consequently, the Court found that the application to lodge the further caveat was not warranted. Regarding the costs, the Court considered the motion for an extension of time to file expert evidence, which had been resolved by consent. The Court ordered that the costs of the motion be borne by the defendant in the proceeding.

The Court’s decision was grounded in the principle that a party cannot repeatedly seek to lodge the same caveat over the same property on the same facts without addressing the merits of the earlier decision. The refusal of the application to lodge the further caveat and the order that the costs of the motion be the defendant’s costs in the cause were consistent with this principle.

Orders