DTC No. 1 v Matthews [2009] NSWSC 568

New South Wales Supreme Court

CITATION : DTC No. 1 v Matthews [2009] NSWSC 568

HEARING DATE(S) : 2 June 2009

JUDGMENT DATE : 3 June 2009

JURISDICTION : Equity

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 3 June 2009

DECISION : Refer to para 52 of judgment.

CATCHWORDS : REAL PROPERTY - torrens title - caveats against dealings - application for extension of caveat - plaintiff claims a beneficial interest as joint venture partner for the development of the land - defendants contend that joint venture agreement validly terminated - serious question to be tried - damages would not be an adequate remedy - balance of convenience favours maintaining the status quo - caveat extended

LEGISLATION CITED : Real Property Act 1900 (NSW) Corporations Act 2001 (Cth)

Davies v Uratoriu (1995) 6 BPR 13,917 Luxury Homes Pty Ltd v Danieli [2005] NSWSC 379; (2005) 12 BPR 23,105 CASES CITED : Esber v Massih [2006] NSWSC 321 Select Personnel Pty Ltd v Morgan & Banks Pty Ltd (1988) 12 IPR 167 Consolidated Credit Network (NSW) Pty Ltd v Zuck 1 Pty Ltd [2004] NSWSC 132; (2004) 11 BPR 21,499

DTC No. 1 Pty Ltd & 3 Ors PARTIES : v David Norman Matthews & 1 Or

FILE NUMBER(S) : SC 2977/09

COUNSEL : Plaintiffs: A A Henskens Defendants: G Sirtes SC & S Callan

SOLICITORS : Plaintiffs: Leonard Legal Defendants: Morton & Harris RMB Lawyers

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY JUDGE LIST

WHITE J

Wednesday, 3 June 2009

2977/09 DTC No. 1 Pty Ltd & 3 Ors v David Norman Matthews & 1 Or JUDGMENT 1 HIS HONOUR: This is an application for extension of a caveat over land in Milton, New South Wales, of which the defendants are the registered proprietors. In the caveat the plaintiff claims a "beneficial interest in the land as joint venture partner with the registered proprietors for the development of the land". That interest is claimed to arise by virtue of a joint venture agreement dated 13 July 2005 between the defendants as owners and the plaintiff as developer. 2 The defendants contend that they terminated the joint venture agreement on 26 February 2009. The plaintiff denies the validity of the purported termination. The defendants say that the plaintiff's claim for relief under the joint venture agreement is weak and that in any event relief should be refused because the undertakings as to damages proffered have not been shown to be meaningful, and could not readily be enforced. 3 The joint venture agreement recites that the defendants are the owners of two parcels of land at Milton comprising an area of approximately 37 hectares. It recites that the plaintiff is a real estate developer and further recites that: " (D) The owners have proposed to the developer that the land is located and zoned such that is suitable for development under State Environmental Planning Policy -- Seniors Living 2004 to comprise a seniors' living estate of approximately 300 dwellings together with an aged care facility.