Crown Developments Australia Pty Ltd v Ginger Development Enterprises Pty Ltd [2003] NSWSC 593

New South Wales Supreme Court

CITATION : Crown Developments Australia Pty Ltd v Ginger Development Enterprises Pty Ltd [2003] NSWSC 593 HEARING DATE(S) : 26 and 27 June, 2003 JUDGMENT DATE : 1 July 2003 JURISDICTION: Equity Division JUDGMENT OF : Palmer J DECISION : Specific performance ordered.

CATCHWORDS : REAL PROPERTY - CONVEYANCING - CAVEATS - Contract provided right of rescission by either party if, as at specified date, there were any "caveats" not "discharged" - third parties lodged series of vexatious caveats all claiming same interest and permitted caveats to lapse after service of lapsing notices - one such caveat lodged on rescission date - vendor rescinded. HELD: "Caveat" lodged was of no effect under s.74O(2) RPA - on construction of contract "caveat" meant caveat effective in law not a caveat which was a nullity under s.74O(2). LEGISLATION CITED : Real Property Act 1900 (NSW) - s.74F, s.74H s.74J, s.74O, s.74P - Butts v O'Dwyer (1952) 87 CLR 267 CASES CITED : - Plumor Pty Ltd v Handley (1996) 41 NSWLR 30 - Stocks & Holdings (Imperial Arcade) Ltd v Fink (1965) 82 WN (Pt 1) (NSW) 386 PARTIES : Crown Developments Australia Pty Ltd - Plaintiff Ginger Development Enterprises Pty Ltd - Defendant FILE NUMBER(S) : SC 5877/02 COUNSEL : J.B. Whittle SC, P.P. O'Loughlin - Plaintiff J.R. McKenzie - Defendant SOLICITORS : Hancock Alldis - Plaintiff William Chan & Co - Defendant

Introduction

1 By proceedings commenced on 11 December 2002 the Plaintiff seeks an order for specific performance of a contract for the sale of land in Crown Street, Surry Hills, dated 15 February 2002 between the Plaintiff as purchaser and the Defendant as vendor. In addition, the Plaintiff seeks damages or equitable compensation in respect of the Defendant's failure to complete the contract. 2 By its Amended Defence, the Defendant alleges that the contract was validly rescinded by it by a Notice of Termination dated 27 November 2002. Alternatively, it says that if the contract has not been rescinded the Plaintiff is guilty of laches whereby specific performance ought to be refused. By its Cross Claim, the Defendant alleges that, as the contract has been validly rescinded, the Plaintiff is not entitled to maintain the caveat lodged against the title to the subject land and seeks an order for the removal of the caveat. Further, the Defendant alleges that the Plaintiff breached the contract in failing to complete on 26 April 2002, whereby the Defendant has suffered loss. Additionally, it claims interest under a clause of the contract.