Winau Aust Pty Ltd v LCC Property Development Pty Ltd - [2019] NSWSC 499

Supreme Court

New South Wales

Medium Neutral Citation: Winau Aust Pty Ltd v LCC Property Development Pty Ltd [2019] NSWSC 499
Hearing dates: 17 April 2019
Decision date: 17 April 2019
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. Notice of motion filed on 11 April 2019 dismissed.
2. Applicant to pay the costs of the motion.

Catchwords: LAND LAW – Caveats – Application for extension of caveat
Legislation Cited: Corporations Act 2001 (Cth), ss 126, 128, 129, 201M and 1274B
Real Property Act 1900 (NSW), ss 43, 57, 58, 59 and 74K
Real Property Regulation 2003 (NSW)
Cases Cited: Bahr v Nicolay (No 2) (1988) 164 CLR 604; [1988] HCA 16
Bank of South Australia v Ferguson (1998) 192 CLR 248; [1998] HCA 12
Barclays Bank Plc v O’Brien [1994] 1 AC 180
Circuit Finance Pty Ltd v Crown & Gleeson Securities Pty Ltd [2005] NSWSC 997; (2006) NSW ConvR 56-143
Hanson Construction Materials Pty Ltd v Vimwise Civil Engineering Pty Ltd [2005] NSWSC 880; (2006) NSW ConvR 56-143
Jared v Clements [1902] Ch 399
Midland Bank Trust Co v Green [1981] AC 513
Perpetual Trustees Victoria Limited v Cox [2014] NSWCA 328
Sutherland v Vale [2008] NSWSC 759; (2008) 14 BPR 26,255
Category: Procedural and other rulings
Parties: Winau Aust Pty Limited (First Plaintiff)
Shunjiyuan Investments Pty Limited (Second Plaintiff)
183 Eastwood Pty Limited (Applicant/named Third Plaintiff in proposed amended statement of claim)
LCC Property Development Pty Ltd (First Defendant)
183 Eastwood Pty Limited as trustee for the Eastwood Unit Trust (named Second Defendant in original statement of claim)
Scott Chan (Third Defendant)
Titan Lending Group Pty Ltd (Fourth Defendant)
Ippin Textiles Pty Ltd (Fifth Defendant)
Jai He Family Investments Pty Ltd (Sixth Defendant)
M Wang Family Pty Ltd (Seventh Defendant)
Pollux Trading Pty Ltd (Eighth Defendant)
Representation:
Counsel:
Mr J Foley(Rong Sheng, interested party)
Solicitors:
Francis Lim Barristers & Solicitors (Applicant)
Bransgroves (Third to Fifth Defendants)

File Number(s): 2018/00170894
Publication restriction: Nil

Judgment

HER HONOUR: This is an application by notice of motion filed on 11 April 2019 by 183 Eastwood Pty Limited (named as the third plaintiff in the notice of motion and in the proposed amended statement of claim but as the second defendant in the original statement of claim) (183 Eastwood), for an order pursuant to s 74K of the Real Property Act 1900 (NSW) (Real Property Act) extending the operation of a caveat (caveat no AN865737) until the final disposal of the proceedings. The first and second plaintiffs in the proceedings are Winau Aust Pty Limited and Shunjiyuan Investments Pty Limited, respectively (collectively, with 183 Eastwood, the plaintiffs).
The caveat in question claims an estate or interest in three parcels of land in Eastwood. The estate or interest claimed in the land is described as follows:

Estate in fee simple by virtue of transfer dated 25 February 2017 between 183 Eastwood Pty Limited and Rong Sheng Eastwood Pty Limited.

The details supporting 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: [2019] NSWSC 499
Decision Date: 17 April 2019

CaseChat Overview and Summary

The matter before the court was a dispute between Winau Aust Pty Ltd and LCC Property Development Pty Ltd, regarding an application for an extension of a caveat. Winau, the first defendant, had lodged a caveat over certain land against LCC, the first plaintiff, who sought to have it removed. The case was heard in the Supreme Court of New South Wales.

The legal issue before the court was whether the caveat, which had lapsed, could be extended. Winau argued that the caveat should be extended because it had been lodged in good faith and there were reasonable grounds for the claim. LCC, on the other hand, contended that the caveat had lapsed and could not be extended, as it was not supported by a reasonable cause of action. The court had to determine whether the caveat could be extended and, if so, under what circumstances.

The court found that the caveat could be extended if it was lodged in good faith and there were reasonable grounds for the claim. The court held that the caveat had been lodged in good faith and that there were reasonable grounds for the claim. However, the court also held that the caveat had lapsed and could not be extended, as it was not supported by a reasonable cause of action. The court found that the caveat was not supported by a reasonable cause of action because it was based on an erroneous assumption of fact. The court further held that the caveat could not be extended because it had already lapsed and the extension would be an abuse of process.

The court dismissed the application for an extension of the caveat. The court also ordered that the costs of the application be paid by the applicant, Winau.

Orders