Marinkovic v Pat McGrath Engineering Pty Limited [2004] NSWSC 571

Reported Decision : 61 NSWLR 150

New South Wales Supreme Court

CITATION : Marinkovic v Pat McGrath Engineering Pty Limited [2004] NSWSC 571 HEARING DATE(S) : 9 & 10 June 2004 JUDGMENT DATE : 10 June 2004 JURISDICTION: Equity JUDGMENT OF : Campbell J DECISION : Contract validly rescinded and deposit repayable. Damages payable by caveator when maintaining caveat caused later contract of sale to be breached.

CATCHWORDS : CONVEYANCING - RELATIONSHIP OF VENDOR AND PURCHASER - breach of contract - warranties implied under section 52A Conveyancing Act 1919 - warranty that there is no matter in relation to a building that would justify the making of any upgrading or demolition order - whether that warranty applies to land containing building work not approved by council - effect decision of council to do nothing about unapproved building work, when building certificate has not issued - CONVEYANCING - LAND TITLES UNDER THE TORRENS SYSTEM - caveats against dealings - refusal or failure of caveator to withdraw caveat - circumstances when compensation recoverable from caveator for such conduct - caveator does not remove caveat in circumstances where it demands a greater benefit as the price of removing the caveat than the Court would give it on application under section 74MA for caveat to be removed Conveyancing Act 1919 Conveyancing (Sale of Land) Regulation 2000 LEGISLATION CITED : Environmental Planning and Assessment Act 1979 Real Property Act 1900 Supreme Court Rules 1970 Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 Australian Property & Management Pty Ltd v Devefi Pty Ltd (1997) 7 BPR 15,255 Beca Developments Pty Ltd v Idamaneo (No 92) Pty Ltd (1990) 21 NSWLR 459 Combe v Swaythling (Lord) [1947] Ch 625 Dunecar Pty Ltd (in Liq) v Colbron [2001] NSWSC 1181 Francombe v Foster Investments Pty Ltd [1978] 2 NSWLR 41 Gay v Gooden (1989) NSW ConvR 55-445 CASES CITED : Gibson v Co-ordinated Building Services Pty Ltd (1989) 4 BPR 9630 Kerrabee Park Pty Ltd v Daley [1978] 2 NSWLR 222 Kingstone Constructions Pty Ltd v Crispel Pty Ltd (1991) 5 BPR 11,987 Ex parte Lord [1985] 2 Qd R 198 Martyn and Another v Glennan and Another [1979] 2 NSWLR 234 The New South Wales Trotting Club Limited v The Council of the Municipality of Glebe (1937) 37 SR (NSW) 288 Timanu Pty Ltd v Clurstock Pty Ltd (1988) 15 NSWLR 338 Francombe v Foster Investments Pty Ltd [1978] 2 NSWLR 41 Wildschut v Borg Warner Acceptance Corporation (Aust) Ltd (1987) 4 BPR 9453 PARTIES : Milan Marinkovic - Plaintiff Pat McGrath Engineering Pty Ltd - Defendant FILE NUMBER(S) : SC 1561/02 COUNSEL : Unrepresented - Plaintiff E Glover - Defendant SOLICITORS : In person (with his McKenzie friend, A Walsh) - Plaintiff Gibson Howlin - Defendant