Drake & Anor v Vineyard Marsden Park Schofield Investment Land Auctions [2007] NSWSC 668

New South Wales Supreme Court

CITATION : Drake & Anor v Vineyard Marsden Park Schofield Investment Land Auctions [2007] NSWSC 668

HEARING DATE(S) : 07/06/07

JUDGMENT DATE : 28 June 2007

JUDGMENT OF : Gzell J

DECISION : Summons dismissed except for damages claim.

CATCHWORDS : CONVEYANCING - Land Titles under the Torrens System - Indefeasibility of Title - Vendor finance - Ageement by Vendor, 1st defendant, to transfer title to plaintiffs upon payment of deposit by instalments - Failure to do so - Purchasers in default of instalment payments - Vendor transfers lots to 2nd defendant who becomes registered proprietor after plaintiffs' caveat lapses - 10 of 14 lots transferred to purchasers for value without notice - 2nd caveat over remaining 4 lots lodged - Plaintiffs seek to set aside transfer of 14 or, alternatively, 4 lots on basis of the fraud exception to indefeasibility of title under the Real Property Act 1900, s 42(1) - Submitted that transferee did not exist or, if she did, she took the transfers for no other purpose than to thwart the plaintiffs' interests

LEGISLATION CITED : Real Property Act 1900

CASES CITED : Briginshaw v Briginshaw (1938) 60 CLR 336

Nicholas James Drake - First Plaintiff PARTIES : Belinda Gay Jump - Second Plaintiff Vineyard Marsden Park Schofield Investment Land Auctions Pty Ltd - First Defendant Siti Hariyani - Second Defendant

FILE NUMBER(S) : SC 1916/05

COUNSEL : Mr R Colquhoun - Plaintiffs

SOLICITORS : Crichton-Brownes Solicitors - Plaintiffs

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

GZELL J

THURSDAY 28 JUNE 2007

1916/05 NICHOLAS JAMES DRAKE & ANOR v VINEYARD MARSDEN PARK SCHOFIELD INVESTMENT LAND AUCTIONS PTY LTD & ANOR JUDGMENT 1 On 9 October 2001, the plaintiffs, Nicholas James Drake and his partner, Belinda Gay Jump, purchased 14 lots of land at Riverstone from the first defendant, Vineyard Marsden Park Schofield Investment Land Auctions Pty Ltd, for $224,000. 2 The purchase was subject to vendor finance repayable by instalments. Robert Wilkie, a director of Vineyard, agreed that when the deposit of $22,400 had been paid, the lots would be transferred to Mr Drake and Ms Jump in exchange for a registered mortgage for the balance of the purchase price. 3 Mr Drake and Ms Jump took possession of the lots and built a house on two of the lots. 4 Instalment payments reached the 10% deposit in September 2002. Mr Drake approached Mr Wilkie for a transfer of the lots. Mr Wilkie said he would prepare the paperwork, but that did not happen. Mr Drake and Ms Jump seek orders for the transfer of the 14 lots to them. 5 The application is fraught with difficulty. There was no appearance for Vineyard or for the second defendant, Siti Hariyani, and there was no evidence that they had been informed that the matter had been set down for trial. 6 The affidavits in support of the application contained much hearsay. I have ignored that evidence save where it constitutes evidence of admissions. 7 Mr Drake and Ms Jump paid only $52,350 towards the purchase price but they seek the transfer of the lots without grant of a registered mortgage for the balance of the purchase price together with interest. 8 On 30 November 2003, an instalment payment of $2,000 was made. No further instalments were made until 1 May 2004 when $6,000 was paid. And the last instalment of $2,000 was made by Mr Drake and Ms Jump on 5 June 2004. Demands were made of Mr Drake to pay the balance of the purchase price but he and Ms Jump failed to do so. 9 There was no evidence of the terms of the vendor finance other than a document drawn up by Mr Wilkie in the form of a statutory declaration that he and Mr Drake signed. It contained the following special conditions: