104 Boyce Road Pty Ltd v Nicolas James Pty Ltd [2009] NSWSC 726

New South Wales Supreme Court

CITATION : 104 Boyce Road Pty Ltd v Nicolas James Pty Ltd [2009] NSWSC 726

HEARING DATE(S) : 22nd June 2009

JUDGMENT DATE : 22 June 2009

JURISDICTION : Equity

JUDGMENT OF : Slattery J at 1

EX TEMPORE JUDGMENT DATE : 22 June 2009

DECISION : Declaration that the defendant has no caveatable interest in the subject property

CATCHWORDS : Caveator entitled to payment of fee from the proceeds of sale under a marketing agreeement - No charge over property - No caveatable interest in property

CATEGORY : Principal judgment

CASES CITED : Epple v Wilson (1972) VR 440 Shepherd v Houston (1927) SASR 144

PARTIES : 104 Boyce Road Pty Limited (Plaintiff) King James Enterprises Pty Limited (Defendant)

FILE NUMBER(S) : SC 3321/09

COUNSEL : A Giurtalis (Plaintiff) Nicholas James (Self Represented Defendant)

SOLICITORS : Salim Rutherford Lawyers (Plaintiff) Nicholas James (Self Represented Defendant)

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

SLATTERY J

22 JUNE 2009

3321/09 104 Boyce Road Pty Ltd v Nicolas James Pty Ltd JUDGMENT

1 HIS HONOUR: These proceedings are brought by 104 Boyce Road Pty Limited against King James Enterprises Pty Ltd. 104 Boyce Road Pty Limited will be referred to henceforth as "Boyce Road" and King James Enterprises Pty Limited, as "King James Enterprises." 2 In its summons dated 19 June 2009, Boyce Road seeks a declaration that King James Enterprises, has no caveatable interest in the property, described in folio identifier 16/SP81935 in Boyce Road, Maroubra ("in the subject property") and a further declaration that registered caveat AE759474Q lodged over the subject property is null, void or of no effect. 3 These proceedings came on for hearing this morning and after a brief time allowed to the parties, I was informed by both sides that the proceedings had settled. When I was first informed of that about mid-morning, I was told that it had settled on the basis that there was agreement to withdraw the caveat but that there was still an issue between the parties as to costs. The difference between the parties being that the plaintiff was seeking costs against the defendant and the defendant was resisting that course. After I had dealt with other matters in the list, and returned to this matter, it was made clear to the court that the plaintiff was by then prepared to take the position on costs which had been previously stated by the defendant, namely, that the parties would by agreement each bear its own costs of these proceedings. 4 With that in mind, I asked Mr Giurtalis, counsel for the plaintiff, to prepare a set of short minutes of order reflecting the declaration and orders which were agreed. A document was prepared and was signed by the solicitor for the plaintiff and counsel for the plaintiff and by Mr Nicolas James, a director of the defendant. And I understand Mr James signs it for and on behalf of the defendant. 5 I have given Mr James leave to appear today on behalf of the defendant notwithstanding that he is not a legal practitioner. I did that on the basis that the proceedings looked like they were going to resolve by agreement today and that it is convenient for Mr James as an agent of the defendant to execute the orders reflecting that agreement so the matter can be disposed of justly, quickly and cheaply without the need for any further delay or the intervention of a solicitor on behalf of the defendant. 6 The short minutes of order which I will initial and date today and place with the Court papers, provide for a declaration that the defendant has no caveatable interest in the subject property. A second declaration was sought, but after discussion between myself and counsel for the plaintiff, the plaintiff has recognised that there is little need for that declaration. For the reasons I will state in a moment, I will make declaration 1 in the short minutes of order. 7 The Court has looked at the evidence to see whether or not the making of that declaration is justified in the circumstances. Notwithstanding the fact that the parties have agreed upon the making of the declaration, the Court must satisfy itself that there is a proper basis to do so. For that purpose, the affidavit of Francis Joseph Back has been read in the proceedings. Mr Back is the solicitor acting for the plaintiff in respect of the sale of individual units in a 26 residential unit and 7 commercial unit strata title development of which the subject property was a part. Mr Back was directly involved in the conveyancing associated with a contract for sale of the subject property. Completion of that contract was arranged for last Thursday, 18 June 2009. In the preliminary settlement searches that were done it emerged that caveat No. AE759474Q had been lodged against the title of the property by the defendant. A copy of the caveat is annexure D to Mr Back's affidavit. 8 The facts stated in schedule 1 of the caveat are: "The nature of the estate or interest claimed is an equitable interest. The facts stated to justify the equitable interest are - the caveator has entered into a marketing agreement with the registered proprietor in relation to the sale of the property and other properties owned by the registered proprietor entitling the caveator to a fee on settlement."