Renascent v ASEL [2002] NSWSC 345

New South Wales Supreme Court

CITATION : Renascent v ASEL [2002] NSWSC 345 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 2187/02 HEARING DATE(S) : 17/04/02 JUDGMENT DATE : 17 April 2002

PARTIES : Renascent Interiors & Refurbishers Pty Limited - Plaintiff ASEL Property Group Pty Limited - Defendant JUDGMENT OF : Barrett J

COUNSEL : Mr M.S. Henry - Plaintiff Mr T.P. Duggan - Defendant SOLICITORS : Harris & Company - Plaintiff Holding Redlich - Defendant CATCHWORDS : CONVEYANCING - caveats against dealings - application for extension of caveat - defendant willing to give substitute security by way of payment into court - calculation of appropriate amount LEGISLATION CITED : Real Property Act Dunecar Pty Ltd v Colbron [2001] NSWSC 1181 CASES CITED : Gibson v Co-ordinated Building Services Pty Ltd (1989) 4 BPR 9630 Kingstone Constructions Pty Ltd v Crispel Pty Ltd (1991) 5 BPR 11,987 DECISION : Transfer of District Court proceedings to Supreme Court; Extension of caveat

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BARRETT J

WEDNESDAY 17 APRIL 2002

2187/02 – RENASCENT INTERIORS AND REFURBISHERS PTY LTD v ASEL PROPERTY GROUP PTY LTD

JUDGMENT

1 The plaintiff is a building contractor which has before the Court two applications relevant to building work in relation to a property in Clarence Street, Sydney, of which the defendant is the owner. 2 First, the plaintiff seeks an order under s.74K of the Real Property Act extending until the further order of the Court the operation of caveat no. 8032326 affecting the title to the defendant's property. 3 Second, the plaintiff seeks orders removing into this Court, in the Construction List of the Equity Division, certain proceedings between the parties in the District Court arising from disputes over the building work at the Clarence Street site. 4 The estate or interests which the plaintiff has asserted in support of its caveat is said to arise under the building contract itself, which is in evidence. The relevant clause is clause 10.17.2 by which the proprietor, which is the defendant, charges its interest in the site with the payment to the builder, which is the plaintiff, "of all monies certified by the architect or otherwise payable under this agreement". 5 It follows that, to be within the scope of this clause, monies must be payable under the agreement, that is to say the building contract, either by virtue of a certificate of the architect or in some other way. It is the "or otherwise payable" aspect on which the plaintiff as builder relies. 6 The plaintiff's claims as they now exist and arise from the building contract are reflected in the District Court statement of claim, which is in evidence. The maximum sum applicable to the claims as pleaded is $48,036 disregarding any interest elements. 7 The claims arise under two headings. First, there is a claim for the cost of variations not paid by the defendant, and that covers a sum of $13,036. Second, there is a claim referable to extensions of time, including those produced by variations, which amounts to $35,000. 8 The alternative claim in the District Court statement of claim, to the extent that it involves a monetary claim, refers to a sum less than the aggregate of $48,036 to which I have referred. 9 I have been taken by counsel for the plaintiff to various matters in the contract and elsewhere to show the validity of the claims reflected in the District Court statement of claim. 10 For present purposes, I do not believe I need to go into the finer detail of those matters, and I certainly do not need to decide the questions which it will be necessary to decide when the proceedings themselves are heard. Given the nature of the application as it affects extension of the caveat, I can dispense with any need to go into that detail. 11 I am satisfied that clause 10.17.2 creates an equitable charge affecting the defendant's property, or at least I am satisfied that there is a sufficiently arguable case for present purposes. I am also satisfied that the plaintiff has a sufficiently arguable case that monies of some amount are secured by that charge. That being so, the plaintiff is entitled to maintain its caveat subject to factors relevant to the balance of convenience, to which I now turn. 12 The chief factor there, and the one upon which emphasis came to be placed more heavily as the hearing proceeded, is the defendant's expressed and continuing willingness to give appropriate substitute security in the form of payment of monies into Court. In other words, the defendant has expressed a willingness to make a payment into Court to abide the determination of the District Court proceedings as the price, as it were, of being relieved of the situation where its title is burdened by the plaintiff's caveat. 13 I have been taken to a number of decided cases and I will quote some extracts. First, in Kingstone Constructions Pty Ltd v Crispel Pty Ltd, (1991) 5 BPR 11,987, Young J said: "Normally, when a caveat is proper in form and substance it will be retained even though this will cause harm to the registered proprietor. After all, the whole purpose of a caveat is to enable a brake to be put on the registered proprietors dealings with his property whilst the claim of the caveator is resolved".