Williamson v Scarano - [2010] NSWSC 975

CITATION: Williamson v Scarano [2010] NSWSC 975

HEARING DATE(S): 24/08/10

JUDGMENT DATE :
24 August 2010

JURISDICTION: Equity

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 24 August 2010

DECISION: 1. Order that the plaintiff's notice of motion filed on 17 August 2010 be dismissed.
2. Order that the plaintiff pay the defendant's costs of and incidental to the notice of motion.

CATCHWORDS: REAL PROPERTY – application pursuant to Real Property Act 1900, s 74K(2) to extend caveat – where plaintiff claimed equitable interest as beneficiary under constructive trust or as equitable chargee – where plaintiff alleged that parties had common intention for plaintiff to obtain half interest in property and plaintiff made monetary and non-monetary contributions, occupied property and made improvements in furtherance of common intention – where no allegation by plaintiff that plaintiff incurred costs of materials for improvements – where extent of plaintiff’s evidence on application was affidavit verifying statement of claim – where plaintiff relied only on caveat and statement of claim to establish claim – evidence deficient to establish serious question to be tried that caveat has substance – plaintiff’s claim of constructive trust or equitable charge unlikely to succeed even if facts alleged in statement of claim treated as evidence– balance of convenience favours defendant – real prospect that defendant would suffer loss if caveat extended – plaintiff unlikely on evidence to be able to satisfy undertaking as to damages

LEGISLATION CITED: Real Property Act 1900 (NSW)

CASES CITED: Deabel v V'Landys [2002] NSWSC 438
ICM Agriculture Pty Ltd v Young [2009] FCA 109
Glew v Harrowell of Hunt & Hunt Lawyers [2003] FCA 373

PARTIES: Plaintiff: David Williamson
Defendant: Vince Scarano

FILE NUMBER(S): SC 2010/257420

COUNSEL: Plaintiff: B Ilkovski
Defendant: D E Baran

SOLICITORS: Plaintiff: Mills Oakley Lawyers
Defendant: Jacovou & Co

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

WHITE J

Tuesday, 24 August 2010

2010/257420 David Williamson v Vince Scarano

JUDGMENT

1 HIS HONOUR: This is an application pursuant to s 74K(2) of the Real Property Act 1900 (NSW) to extend the operation of a caveat lodged in relation to land in Ermington.

2 In the caveat the plaintiff claims an interest in the following terms:

Equitable interest in the land as beneficiary under a constructive trust or an equitable chargee.

3 The facts upon which that interest is claimed are described in the caveat as follows:

“ The facts on which the Caveator’s claim is founded for an equitable interest as beneficiary under a constructive trust or as an equitable chargee are that the Registered Proprietor made an oral statement to the Caveator to the effect that the Caveator would have an interest in the land if he made monetary contributions to the Registered Proprietor to be applied to reduce the mortgage over the land. Encouraged by the Registered Proprietor’s statement and acting in the belief that he would have an interest in the land, the Caveator made monetary contributions to 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.

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Details

Case: [2010] NSWSC 975
Decision Date: 24 August 2010

CaseChat Overview and Summary

The proceedings in Williamson v Scarano involved a dispute over a property in which the plaintiff sought to extend a caveat under the Real Property Act 1900, s 74K(2). The plaintiff, Williamson, claimed an equitable interest as a beneficiary under a constructive trust or as an equitable chargee of the property. This claim arose from an alleged common intention between Williamson and the defendant, Scarano, that Williamson would acquire a half interest in the property. Williamson alleged monetary and non-monetary contributions, occupation of the property, and improvements made in furtherance of this common intention. The plaintiff did not allege incurring costs for materials for the improvements.

The central legal issue for the court was whether Williamson's claims established a serious question to be tried that the caveat had substance. The court had to assess the sufficiency of Williamson's evidence, which was limited to an affidavit verifying the statement of claim, and the likelihood of Williamson succeeding on the merits of the claim. The court also needed to consider the balance of convenience, weighing the potential harm to each party if the caveat was extended or not.

The court determined that Williamson's evidence was insufficient to establish a serious question to be tried that the caveat had substance. The plaintiff's reliance on the caveat and the statement of claim did not provide adequate evidence to support the claim of a constructive trust or equitable charge. The court concluded that even if the facts alleged in the statement of claim were accepted as evidence, the likelihood of Williamson succeeding on the merits was low. Additionally, the balance of convenience favoured the defendant, Scarano, as there was a real prospect that Scarano would suffer loss if the caveat was extended. Given these findings, the court was unlikely to be persuaded that Williamson could satisfy an undertaking as to damages.

As a result, the application to extend the caveat was dismissed. The court ordered that the caveat be removed and directed that the caveator pay the caveator’s costs of the application.

Orders