Wynala Development Pty Ltd v Clancy

[1999] VSC 302

SUPREME COURT OF VICTORIA
PRACTICE COURT	Do not Send for Reporting
Not Restricted

No. 6072 of 1999

WYNALA DEVELOPMENT PTY. LTD.	Plaintiff
v.
JOHN ALAN CLANCY AND ANOTHER	Defendants

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 AUGUST 1999
DATE OF JUDGMENT:	17 AUGUST 1999
CASE MAY BE CITED AS:	WYNALA DEVELOPMENT PTY. LTD. v. JOHN ALAN CLANCY & ANOR.
MEDIA NEUTRAL CITATION:	[1999] VSC 302

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CATCHWORDS:      Sale of land – Removal of caveat.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. V. Ruja	Gerard Hughes
For the First Defendant	Mr. J.A.J. Nixon	Bernard Carr

HIS HONOUR:

1. When this matter was before me on Thursday of last week I heard the application of the plaintiff to have removed from the title to the property in question two caveats, one which had been lodged quite some time ago, and a second caveat which had only been lodged that very day.

1. At the conclusion of the hearing I indicated to the parties that I proposed to consider the matter over the weekend and deliver my ruling in relation to the plaintiff's application at 2.15 today.  At that stage counsel for the first-named defendant stated that he may wish to place further submissions before the court concerning not the original caveat but the caveat which had been lodged with the Registrar of Titles earlier in the day.  I told the parties that in that situation I would accept any written submissions they had in relation to that caveat provided those submissions were sent to me by 9.30 this morning.

1. I did not receive anything by 9.30, but did receive not only further submissions on behalf of the first-named defendant, but another affidavit filed on behalf of the first-named defendant somewhere shortly before 10 a.m. This morning.  At 1.45 this afternoon I received further submissions on behalf of the plaintiff together with another affidavit sworn by the plaintiff.

1. Despite the lateness of receiving that material I have considered it, and it has not altered the view I had formed over the weekend in relation to the matter, and that is that the two caveats lodged by the first-named defendant should be removed from the title to the property in question and returned to the first-named defendant.

1. In my opinion it is highly doubtful that the first-named defendant has a caveatable interest in the property.  I make no conclusive finding in relation to the matter, as it would not be possible to make a conclusive finding without a full trial of the proceeding.

1. It is my opinion that having regard to the events which have occurred in recent months in relation to the property, it is the appropriate course to adopt.  I say that because:

1.        The joint venture agreement between the parties to this litigation has clearly fallen through and the property will not be developed by the parties in the way they intended, or in any other way for that matter.

2.        The property is now being sold to a third party with settlement of the site scheduled to take place on 10 September next.  The third party has now taken possession of the property, and the deposit paid by the new purchaser has been released to the plaintiff.

3.        The plaintiff by its counsel has given an undertaking to the court that after payment out of the ANZ Bank the agents commission and the legal expenses incurred in connection with the sale, the balance of the purchase money will be placed in an interest bearing trust account in the name of the solicitor for the plaintiff and retained in that account pending the further order of the court.

4.        On Thursday last the first-named defendant did not oppose the sale of the property as such.  His contention then being that it had been sold for less than its true value.

1. There is no credible evidence before the court to that effect.  If the first defendant later establishes that that is the case, and assuming that he has any valid claim against the plaintiff, which on the material presently before the court is highly doubtful, in my opinion he can be adequately compensated by an appropriate award of damages.

1. I order:

1.That caveat number V966367F be removed from certificate of title volume 10309 folio 059, 060, 061 and 062 and returned to the lodging party.

2.That Caveat number W216W90Y be not registered by the Registrar of Titles on the said certificates of title but be returned to the lodging party.

3.That the first defendant file and deliver his defence and counterclaim on or before 10 September 1999.

4.That the plaintiff file and deliver its reply and defence to counterclaim on or before 30 September 1999.

5.That the proceeding be referred to the Listing Master on a date to be fixed by the Associate to the Listing Master after 30 September 1999 for any further directions in the proceeding.

6.        I authorize any Master of the court to vary the dates specified in these orders.

7.        I reserve liberty to apply.

8.        I reserve the costs of the application.

9.I direct that this order be prepared by the solicitors for the plaintiff and brought to me for authentication within 48 hours.

10.I direct that a copy of this order be served by the plaintiff's solicitor upon the Associate to the Listing Master within seven days of its authentication.

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