Kell & Rigby Pty Ltd v Flurrie Pty Ltd [2006] NSWSC 906

Reported Decision : 67 NSWLR 113

New South Wales Supreme Court

CITATION : Kell & Rigby Pty Ltd v Flurrie Pty Ltd [2006] NSWSC 906

HEARING DATE(S) : 22 August 2006

JUDGMENT DATE : 6 September 2006

JURISDICTION : Equity

JUDGMENT OF : Brereton J

DECISION : 1. Order that the summons be dismissed, with costs.; 2. Order that the plaintiff forthwith withdraw caveat AB140199. ; 3. Direct that the defendant have liberty to apply, at its own risk as to costs, by arrangement with my associate within seven days, for an inquiry as to damages under the usual undertaking.

CATCHWORDS : REAL PROPERTY – Land under Torrens Title – Caveats – BUILDING AND ENGINEERING CONTRACTS – Residential Building Contracts – in what circumstances can residential building contract create caveatable interest - Home Building Act 1989, s 7D – whether s 7D(3)(c) defines terms of permissible charge or event precedent to enforceability – whether judgments obtained by registration of adjudication certificates under Building and Construction Industry Security of Payment Act are judgments that payments of moneys due under the contract be made within s 7D(3)(c) – whether caveatable interest can be created by estoppel when creation by contract prohibited.

Building and Construction Industry Security of Payment Act 1999 (NSW), ss 3, 8, 9, 11, 16, 32 Building Services Corporation Legislation Amendment Act 1996 (NSW) Commercial Arbitration Act 1984 (NSW) LEGISLATION CITED : Corporations Law (Cth), s 562A Home Building Act 1989 (NSW), ss 7D(1), (2), (3), 95(4) Home Building Amendment Act 1998 (NSW) Home Building Amendment Bill 1998 (NSW) Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 6