Witty v LKJD Managment Pty Ltd - [2009] NSWSC 1380

CITATION: Witty & Ors v LKJD Managment Pty Ltd [2009] NSWSC 1380

HEARING DATE(S): 24 & 27 November 2009

JUDGMENT DATE :
24 November 2009

JURISDICTION: Equity

JUDGMENT OF: Slattery J at 1

DECISION: ORDERS:
1. The Summons be dismissed.
2. The first plaintiff pay the defendants' costs in the sum of $630.00.

CATCHWORDS: REAL PROPERTY - torrens title - caveats against dealings - lapsing notices served - application for extension of caveats - caveats incurably defective - no description of estate or interest claimed - no clear interest created by underlying transactions - caveats not extended

LEGISLATION CITED: Real Property Act 1900 (NSW) ss 74F 74K, 74L

CATEGORY: Principal judgment

CASES CITED: Dolroy Pty Limited v Civilco Constructions Pty Limited [2007] NSWSC 1263
Jones v Baker (2002) 10 BPR 19
Warden v Mortgage House (No 1) Pty Limited [2006] NSWSC 1462

PARTIES: First Plaintiff: Jeanette Beatrice Witty
Second Plaintiff: Unique Office Group Pty Ltd
Third Plaintiff: LKJD Holdings Pty Ltd
Defendant: LKJD Management Pty Ltd (In Liquidation) - Paul Cook (Liquidator)

FILE NUMBER(S): SC 5441/09

COUNSEL: Plaintiffs: Mr Deitch (by leave of the Court)
Defendant: Mr B Hemsworth (Solicitor)

SOLICITORS: Plaintiffs: Mr Deitch (by leave of the Court)
Defendant: Somerville & Co

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

SLATTERY J

TUESDAY 24 NOVEMBER 2009

5441/09 JEANETTE BEATRICE WITTY; UNIQUE OFFICE GROUP PTY LTD & LKJD HOLDINGS PTY LTD V LKJD MANAGEMENT PTY LTD (IN LIQUIDATION) - PAUL COOK (LIQUIDATOR)

JUDGMENT

1 HIS HONOUR:

Introduction

2 Leonard Deitch and his relatives have owned a family home in Deepwater Road, Castle Cove for many years. Leonard Deitch is a director of LKJD Management Pty Limited (Management), the registered proprietor of the property. Management recently suffered financial difficulties and has been in liquidation since July 2009. The defendant, Management’s liquidator, plans to sell the property. He cannot do that because the three plaintiffs have each placed a caveat on the title. Each plaintiff claims an interest in the property. The liquidator has issued lapsing notices for the plaintiffs’ three caveats. In answer to those notices Leonard Deitch now requests the Court to extend the caveats. The liquidator opposes their extension. The issue for decision is whether or not the caveats should be extended.

3 In conformity with the Court's policy of reducing the risk of identity theft, the precise address of the property is not published in this judgment. If required the address may be ascertained from the Court’s file.

Management’s Loan Agreements and the Caveats

4 Leonard Deitch is associated with each of the three plaintiffs. He is the former husband of the first plaintiff, Jeanette Beatrice Witty. His son David Deitch controls or is closely associated with the second plaintiff, Unique Office Group Pty Limited (Unique). Leonard Deitch is also associated with the third plaintiff, LKJD Holdings Pty Limited (Holdings). Before it went into liquidation, Leonard Deitch was in day to day control of Management.

5 In the 2008-2009 financial year Management found…

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: [2009] NSWSC 1380
Decision Date: 24 November 2009

CaseChat Overview and Summary

The matter of Witty v LKJD Management Pty Ltd was heard in the Supreme Court of New South Wales. The plaintiff, Mr Witty, sought to extend caveats he had lodged against dealings in certain Torrens title land. The defendants, LKJD Management Pty Ltd, contested the application on the basis that the caveats were incurably defective and should not be extended. The court was required to determine whether the caveats were validly lodged and whether they should be extended.

The primary legal issue for the court was whether the caveats were properly lodged and, if so, whether they should be extended. Specifically, the court had to consider whether the caveats contained a description of the estate or interest claimed, and whether a clear interest had been created by the underlying transactions. The court also needed to assess whether the defects in the caveats could be remedied by an extension.

The court held that the caveats were incurably defective as they did not describe the estate or interest claimed by the plaintiff. Furthermore, the court found that no clear interest had been created by the underlying transactions that would support the extension of the caveats. Consequently, the court refused to extend the caveats and dismissed the plaintiff's application. The court's decision was based on the principle that a caveat must clearly identify the interest claimed and be supported by an underlying transaction that creates a clear interest in the property.

The final orders of the court were that the caveats lodged by Mr Witty were not extended and the application was dismissed. The court further ordered that the costs of the application be paid by the plaintiff.

Orders