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. However, it now appears that there is between the parties a substantial dispute about the facts at the centre of the differences between them. It appears, from what counsel have told me this morning, that this dispute may not have been before the learned judge below. The defendant contends that it received the money that it did and handed over the documents on the settlement that took place in November last, only upon the basis that it was carrying out the terms of the orders made by Windeyer J. It did not, I am told, intend to effect an overall settlement of the dispute and that it maintained for itself the right to continue with the appeal and secondly, to lodge a caveat which would effectively support the appeal by restraining the dealings with the land pending determination of it. On the part of the respondent, I am told this morning that the respondent understood the settlement which took place, by the payment of money and the handing over of documents, to be pursuant to an overall settlement between the parties whereby the respondent was released from all claims by the applicant here, the defendant, in relation to matters that were the subject of dispute. 2 UNREPORTED JUDGMENTS Whether there was an overall release by agreement or whether the settlement which took place was a settlement only pursuant to the specific orders made by Windeyer J, and without prejudice in pursuance of the appeal, will depend upon issues of fact which have to be determined between the parties. When this matter emerged in discussion, both counsel ultimately agreed that these were issues of fact which could not be conveniently determined by this Court and that the matter would have to be determined by the Equity Division. In the circumstances, I think the only convenient course to follow is to refer the proceedings back to the Equity Division. The court has, on previous occasions, held that it has such power. The matter can be dealt with by the appropriate judge in the Equity Division and any issues of fact in relation to the matter can be there determined. It has been said during argument that the judge who referred the matter to this Court may have done so upon the basis that it was convenient for this Court to deal with the matter at the sane time as an application for expedition of the hearing of the appeal was dealt with by this Court. I do not know whether this is the basic reason why that was done. But in view of what has now emerged, namely that these issues of fact have to be determined, I do not think that this Court can properly or conveniently deal with the application for extension of the caveat. In the circumstances, I shall order that the matter be returned to the Equity Division to be dealt with by the appropriate judge in that Division. I will order that the caveat be extended for a period of seven days to enable the judge who deals with the matter to take control of it and any further extensions, if they are to be made, should be made to that judge and may be dealt with by that judge. The costs of the present proceeding before this Court should be dealt with by the judge who finally determines this application.