The Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) (No 2) [2024] NSWCA 45

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: The Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) (No 2) [2024] NSWCA 45 Hearing dates: On the papers Decision date: 04 March 2024 Before: White JA, Kirk JA, Griffiths AJA Decision: (1) Declare that commission in the amount of $527,958 plus interest at 10% per annum accrued thereon from 1 October 2019 to and including 13 September 2021, and thereafter at the rates prescribed for the purpose s 101 of the Civil Procedure Act 2005 (NSW), is owing to the appellant by the respondent pursuant to the Sole Agency Agreement as supplemented by the First, Second, Third and Fourth Supplementary Agency Agreements pleaded in paragraphs 14, 22, 25, 27 and 29 of the Amended Commercial List Statement, and is secured by an equitable charge over the properties listed at Annexure A to the Notice of Appeal, save for property 264/SP90944. (2) Remit the proceeding to the primary judge for the purpose of considering making orders for judicial sale. (3) Order that there be no order as to costs to date in respect of the proceedings below, or of the appeal, with the intent that the parties bear their own costs of the proceedings below to date and of the appeal. Catchwords: JUDGMENTS AND ORDERS – Consequential orders – Where order made that parties seek to agree on declaratory relief to give effect to reasons – Where parties unable to agree on form of declaratory relief – Where declarations proposed in primary judgment include a slip – Whether matter should be remitted to primary judge – Matter not to be remitted to primary judge REAL PROPERTY – Caveats – Caveatable interests – Where caveatable interest in the nature of equitable charge secured payment of commission owing in respect of sales of property – Whether charge extended to all unsold units – Effect of supplementary agreements is that the properties listed therein are to be treated as included in the primary agreement – Declaration that equitable charge extends to all unsold units to secure debt owed for commission and interest Legislation Cited: Civil Procedure Act 2005 (NSW), s 101 Uniform Civil Procedure Rules 2005 (NSW), r 14.26 Cases Cited: Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd [2008] NSWCA 39 The Property Investors Alliance Pty Ltd v C88 Project Pty Ltd [2021] NSWSC 1175 Category: Consequential orders Parties: The Property Investors Alliance Pty Ltd (Appellant) C88 Project Pty Ltd (in liq) (Respondent) Representation: Counsel: S A Lawrance SC with J C Lee (Appellant) D Neggo (Respondent)