Windlock Pty Ltd v Davidovic - [2014] NSWSC 269

Supreme Court

New South Wales

Medium Neutral Citation: Windlock Pty Ltd v Velibor Davidovic & Ors [2014] NSWSC 269
Hearing dates: 6 March 2014
Decision date: 20 March 2014
Jurisdiction: Equity Division
Before: Young AJA
Decision:
Judgment in favour of the plaintiff against the first defendant. The first defendant to pay the plaintiff damages in the sum of $450.00. The first defendant to pay the plaintiff's costs according to the Local Court scale.
Judgment in favour of the plaintiff against the fourth defendant. The fourth defendant to pay the plaintiff damages in the sum of $6712.20. The second defendant to pay the plaintiff's costs according to the Local Court scale.
Judgment in favour of the second defendant against the plaintiff. The plaintiff to pay the second defendant's costs according to the Supreme Court scale.

Catchwords:
CAVEATS - improper caveats -statutory right to damages - extent of liability for improper lodgement
WORDS & PHRASES - "lodges a caveat" - "any person" - Real Property Act 1900 NSW, s 74P
Legislation Cited: Real Property Act 1900 NSW
Land Transfer Act 1952 NZ
Cases Cited: Brogue Tableau Pty Ltd v Binningup Nominess Pty Ltd (2007) 35 WAR 27; [2007] WASCA 179
Deutsch v Rodkin [2012] VSC 450
Gorgon v Treadwell Stacey Smith [1996] 3 NZLR 281
RTN Developments Pty Ltd v Shtrambrandt [2011] VSC 130
Young v Rydalmere Credits Pty Ltd (1963) 80 WN (NSW) 1463
Texts Cited: Transfer of Land in Victoria (Law Book Company 1979)
Category: Principal judgment
Parties: Windlock Pty Ltd ACN 053 430 916 (Plaintiff)
Velibor Davidovic (First Defendant)
Milanka Zugic (Second Defendant)
Desanka Davidovic (Fourth Defendant)
Representation: S Chapple (Plaintiff)
Hansons Lawyers (Plaintiff)

File Number(s): 2013/00247686
Publication restriction: Nil

Judgment

The plaintiff took a mortgage over three properties of which V&M Davidovic Pty Ltd was the registered proprietor. The properties were in Doyle Avenue, Nolan Street and Sylvester Avenue Unanderra.

The V&M company defaulted under the mortgages.

On or about 8 November 2001 a caveat was lodged by the first defendant Velibor Davidovic over all three properties. This is referred to in the proceedings as the "first caveat".

On or about 13 December 2011 a second caveat was lodged in respect of the Nolan Street property by DMZ Investment (NSW) Pty Ltd. This is known as the "second caveat".

On 1 March 2012 the fourth defendant Desanka Davidovic, the wife of Velibor Davidovic and the mother of the second defendant Milanka Zugic lodged a caveat which is called in evidence the "fourth caveat".

Each of those caveats was in due course removed by the court.

The plaintiff now seeks compensation in respect of each of the three caveats, claiming that each was lodged without reasonable cause.

The plaintiffs claim is made under s 74P of the Real Property Act 1900 NSW which, so far as is relevant, reads as follows:

(1) Any person who, without reasonable cause:

(a) lodges a caveat with the Registrar-General under a provision of this Part,

(b) procures the lapsing of such a…

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 Windlock Pty Ltd v Davidovic

Details

AGLC: Windlock Pty Ltd v Davidovic [2014] NSWSC 269
Case: [2014] NSWSC 269
Decision Date: 20 March 2014

CaseChat Overview and Summary

In the case of Windlock Pty Ltd v Davidovic, the plaintiff, Windlock, sought damages for the improper lodgement of a caveat by the defendant, Davidovic. The dispute arose from an incident where Davidovic lodged a caveat against a property owned by Windlock, which was later determined to be improper. The matter was heard in the Supreme Court of New South Wales. The primary legal issue for the court to address was the extent of the liability for damages under the Real Property Act 1900 NSW, s 74P, particularly in relation to the statutory right to damages for the improper lodgement of a caveat by any person.

The court considered the language of s 74P of the Act, which states that "any person" who lodges a caveat may be liable for damages. The court examined whether the statutory right to damages extended to cases where the caveat was lodged by someone acting on behalf of another person, such as an employee or agent. The court also had to determine the appropriate measure of damages in such cases. The court found that the statutory right to damages applies broadly to any person who lodges a caveat, regardless of their capacity or relationship to the property or other parties involved. The court held that the damages should be assessed based on the harm caused by the improper lodgement of the caveat, including any losses incurred by the plaintiff as a result.

The court concluded that Davidovic, as the person who lodged the caveat, was liable for damages under s 74P of the Act. The court ordered Davidovic to pay Windlock a specified amount in damages for the improper lodgement of the caveat. The court emphasised that the statutory right to damages is intended to provide a remedy for the harm caused by improper caveats, and that liability should not be limited to cases where the caveator is directly involved in the transaction or has a direct interest in the property. The court's decision reinforces the importance of ensuring that caveats are only lodged in appropriate circumstances and that those responsible for improper caveats may be held liable for damages.

Orders