Woodsman Pty Ltd v Jozic - [2018] NSWSC 1311

Supreme Court

New South Wales

Medium Neutral Citation: The Woodsman Pty Ltd v Jozic [2018] NSWSC 1311
Hearing dates: 16 August 2018
Date of orders: 16 August 2018
Decision date: 16 August 2018
Jurisdiction: Equity
Before: Darke J
Decision:
Summons seeking orders in respect of a caveat dismissed with costs.

Catchwords: LAND LAW – caveats – where the nature of the claimed interest is uncertain on its face – deficiency in caveat cannot be overcome by s 74L of the Real Property Act 1900 (NSW) or by orders permitting the amendment of the caveat – inappropriate to grant leave to lodge a further caveat under s 74O of the Real Property Act 1900 (NSW) where the interest to be claimed in a fresh caveat would not be in respect of the same estate, interest or right
Legislation Cited: Real Property Act 1900 (NSW), s 74K, s 74L, s 74O
Cases Cited: Allen Taylor & Co Pty Ltd v Harrison [2010] NSWSC 1021
Circuit Finance Pty Ltd v Crown and Gleeson Securities Pty Ltd [2005] NSWSC 997
Depsun Pty Ltd v Tahore Holdings Pty Ltd (1990) 5 BPR 11,314
FTFS Holdings Pty Ltd v Business Acquisitions Australia Pty Ltd [2006] NSWSC 846
Hanson Construction Materials Pty Ltd v Vimwise Civil Engineering Pty Ltd [2005] NSWSC 880
In The Marriage of Stevens (1991) 105 FLR 459
Multi-Span Constructions No 1 Pty Ltd v 14 Portland Street Pty Ltd [2001] NSWSC 696
Ron Medich Properties Pty Ltd v McGurk [2010] NSWSC 552
Windella (NSW) Pty Ltd v Hughes (1999) 49 NSWLR 158
Warner v Andrews [2011] NSWSC 956
Category: Principal judgment
Parties: The Woodsman Pty Ltd (Plaintiff)
Alen Jozic (Defendant)
Representation:
Counsel:
Mr D W Robertson (Plaintiff)
Mr J A Rose (Defendant)
Solicitors:
E C Legal (Plaintiff)
Sewell & Kettle Lawyers (Defendant)

File Number(s): 2018/198467
Publication restriction: None

Judgment – EX TEMPORE

By a Summons filed on 27 June 2018, the plaintiff seeks an order under s 74K of the Real Property Act 1900 (NSW) extending the operation of a caveat it has lodged against the titles to two properties owned by the defendant. In the alternative, an order is sought pursuant to s 74O of the Real Property Act for leave to lodge a further caveat. The proceedings were initiated following the service of a lapsing notice in respect of the caveat.
On 2 July 2018, an order was made by the Chief Judge in Equity extending the operation of the caveat to 23 July 2018. On 20 July 2018, I ordered that the operation of the caveat be extended up to 5pm today.
In support of the application, the plaintiff read two affidavits, affirmed by Kyle Ogden, on 27 June 2018 and 9 August 2018. In opposition to the application, the defendant read his affidavit affirmed on 20 July 2018.
I note that a number of objections to parts of the affidavits were notified but were not dealt with. As will become apparent, this was because I considered it was…

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 1311
Decision Date: 16 August 2018

CaseChat Overview and Summary

Woodsman Pty Ltd, the registered proprietor of certain land, sought to challenge a caveat lodged by Jozic, which raised concerns about the validity of a mortgage transaction. The matter came before the Supreme Court of New South Wales, which was asked to determine the validity of the caveat and the procedures available to the parties. The central legal issues revolved around the interpretation of the Real Property Act 1900 (NSW) and the court's discretion to permit the amendment of a caveat, or to allow the lodging of a further caveat.

The court first considered whether the deficiency in the caveat could be remedied under section 74L of the Act, which allows for the amendment of a caveat where it is defective. It found that the nature of the interest claimed by Jozic was uncertain and that this uncertainty could not be resolved through the amendment process. The court then examined whether leave should be granted under section 74O to lodge a further caveat. It held that such a course would not be appropriate because the interest proposed in the fresh caveat would not pertain to the same estate, interest, or right as the original caveat. Consequently, the court dismissed the application for leave to lodge a further caveat.

In summary, the court found that the claimant could not remedy the deficiencies in the original caveat through amendment or by lodging a new one. The claimant's application was dismissed, leaving the original caveat intact. The court's decision underscores the importance of clarity in the interests claimed in a caveat and the limited circumstances under which amendments or further caveats may be permitted.

Orders