LAHOUD v B AND M QUALITY CONSTRUCTIONS PTY LTD [1994] NSWCA 174

LAHOUD v B & M QUALITY CONSTRUCTIONS PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY JA 4 July 1994

[1994] NSWCA 174

Mahoney JA This is an application which comes before me sitting in the Court of Appeal exercising the powers of the Supreme Court Act, in somewhat urgent circumstances. I shall record the facts as I understand them to be, based upon what I have been told by counsel. In the circumstances, I have not had the opportunity to analyse the material placed before the court in affidavit form or in the annexures to the affidavits.

I am told that the proceeding was brought before Windeyer J in the Equity Division. On 20 October 1993 his Honour upheld the plaintiff's case and ordered that there be specific performance of an agreement, which has been described by the claimant this morning as "an option upon an option". I have been told that following that order the defendant in the proceeding - and I an using these terms loosely to include individual parties as well as companies - received moneys and handed over documents sufficient to enable that agreement to be specifically performed.

However, following the handing over of the money to the defendant and the handing over of documents and the like by the defendant in this way, an appeal was lodged and a caveat was put on the relevant land by the defendant. I have been told that the plaintiff in the proceedings, in the meantime, went ahead to develop the land and has spent considerable sums of money upon the developing of the land.

When the caveat to support the defendants interests was lodged, and I am told this occurred only in March this year, a notice was given requiring the defendant to show cause - again I put the matter loosely - why the caveat should be extended in effect to continue during the period of the pendency of the appeal. The matter came before a judge in the Equity Division and I understand that proceeding has been referred to this Court.