Harvie v. Stevens; Stevens v. Harvie [2005] NSWSC 343

New South Wales Supreme Court

CITATION : Harvie v. Stevens; Stevens v. Harvie [2005] NSWSC 343

HEARING DATE(S) : 6 April, 2005

JUDGMENT DATE : 6 April 2005

JURISDICTION : Equity Division

JUDGMENT OF : Palmer J

DECISION : Declaration as sought in Summons; indemnity costs order made.

CATCHWORDS : CONTRACT - CONSTRUCTION - INDEMNITY COSTS ORDER - No question of principle.

6197/04: Gillian April Harvie - Plaintiff Gary John Stevens - Defendant PARTIES : 1917/05: Gary John Stevens - Plaintiff Gillian April Harvie - Defendant

FILE NUMBER(S) : SC 6197/04; 1917/05

J.M. White - Stevens COUNSEL : K.G. Odgers - Harvie

Garry Pickering - Stevens SOLICITORS : Maurice Marshan - Harvie

LOWER COURT JURISDICTION :

Ex tempore

1 The Defendant in proceedings 1917 of 2005 ("Ms Harvie") was the registered proprietor of a property known as Unit 6, 62 Greenknowe Avenue, Elizabeth Bay. On 25 August 2004, Ms Harvie entered into a contract to sell the unit. On 9 September 2004 the Plaintiff in proceedings 1917 of 2005 ("Mr Stevens") lodged a caveat on the title to the property preventing completion of the sale. On 19 October 2004, Ms Harvie received a Notice to Complete from the purchaser of the property. Her solicitor requested Mr Stevens to withdraw the caveat. Mr Stevens, through his solicitor, declined. On 18 November 2004 Ms Harvie commenced proceedings numbered 6197 of 2004 in this Court for an order that Mr Stevens withdraw the caveat. 2 The matter came before me on 26 November 2004. After hearing argument, I delivered a judgment to which reference should be made. Very briefly, the position as revealed by the evidence was as follows. Although the subject property was registered in the name of Ms Harvie, Mr Stevens alleged that the whole of the money which had been used to provide the purchase price for the unit had been paid by him and that he had paid the mortgage instalments. He said that the unit was held on a trust for himself absolutely. Ms Harvie said that there had been an agreement between herself and Mr Stevens as to how the unit should be held. Mr Stevens and Ms Harvie had formerly been married but were then divorced and they had a child of the marriage. Ms Harvie said that the unit was bought pursuant to an agreement with Mr Stevens that he would provide the money for the purchase, but the unit would be held in Ms Harvie's name upon trust for their child. 3 There was no disagreement between the parties that the unit should be sold. Their disagreement related only to the beneficial ownership of the proceeds of sale. In those circumstances, I considered that the balance of convenience favoured the removal of the caveat: the parties could then fight at leisure, as it were, over who was entitled to the proceeds. This solution was, in fact, proffered by Ms Harvie who had in her Summons sought an order that the proceeds of sale be deposited into her solicitor's trust account pending resolution of the dispute as to their ownership. 4 I indicated at the conclusion of my judgment that I would order removal of the caveat if Ms Harvie proffered an undertaking in the terms of paragraph 2 of her Summons. That undertaking was given through Counsel. It was an undertaking to the Court. That condition having been met, I ordered the caveat to be removed. The terms of the orders made on 26 November are as follows. "1. The orders made earlier today by Palmer J are vacated and the following orders substituted.