Mathews v Council of the Shire of Gunnedah [2010] NSWSC 412

New South Wales Supreme Court

CITATION : Mathews v Council of the Shire of Gunnedah [2010] NSWSC 412

HEARING DATE(S) : 4 May 2010 JUDGMENT OF : Ball J

EX TEMPORE JUDGMENT DATE : 5 May 2010

Motion dismissed with costs. DECISION : Costs to be paid on an indemnity basis on and from 3 May 2010. Grant leave under section 74O of the Real Property Act to file a fresh caveat.

CATCHWORDS : REAL PROPERTY - Caveats - Application for extension - whether interest caveatable. - STAMP DUTY - Admissability of unstamped documents.

LEGISLATION CITED : Duties Act 1997 Real Property Act 1900

CATEGORY : Procedural and other rulings

CASES CITED : Reliance Financial Services Pty Ltd v Baddock [2002] NSWSC 857 Weston v Metro Apartments Pty Ltd [2002] NSWSC 682

PARTIES : Wayne Terence Mathews (Plaintiff) Council of The Shire of Gunnedah (Defendant)

FILE NUMBER(S) : SC 2010/98819

COUNSEL : P Knowles (Plaintiff) S W Balafoutis (Defendant)

SOLICITORS : McMahon Broadhurst Glynn (Plaintiff) Maddocks (Defendant)

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

BALL J

5 MAY 2010

2010/98819 MATHEWS v THE COUNCIL OF THE SHIRE OF GUNNEDAH EX TEMPORE JUDGMENT 1 HIS HONOUR: This is an application for extension of two caveats pursuant to section 74K of the Real Property Act. The caveats have been lodged over lots 16 Deposited Plan 6022A and B (lot 16) and lot 304 of Deposited Plan 754954. The land over which the caveats have been lodged comprise part of the Gunnedah Airport, which is owned by the defendant. 2 The plaintiff claims an interest in the land, which is the subject of the two caveats, as assignee of an unregistered lease dated 1 August 2000 between the defendant and Mr Kenneth Hearne. The assignment is in writing and is dated 28 June 2007. Neither the lease nor the assignment has been stamped. 3 Section 304(1) of the Duties Act 1997 provides that an instrument that is chargeable with duty under that Act is not available for use in law or equity for any purpose and may not be presented in evidence in a court unless it is duly stamped. An exception is created under subsection (2). That subsection says that the instrument is admissible if the instrument is after its admission transmitted to the Chief Commissioner of State Revenue in accordance with arrangements approved by the Court, or if, where the person who produces the instrument is not the person liable to pay the duty, the name and address of the person so liable is forwarded, together with the instrument, to the Chief Commissioner in accordance with arrangements approved by the Court. 4 The plaintiff has proffered an undertaking in respect of the assignment to transmit that instrument to the Chief Commissioner of State Revenue within seven days and, in respect of the lease, to forward to the Chief Commissioner of State Revenue, the name and address of the person liable to pay duty on the instrument, together with a copy of the instrument, within seven days. Those undertakings were proffered in accordance with the UCPR rule 31.13. 5 There is a dispute about the effect of the undertakings. Mr Balafoutis relies on a judgment of Young CJ in Eq in Reliance Financial Services Pty Ltd v Baddock [2002] NSWSC 857. In that case, his Honour expressed the view that the effect of the undertaking was to make the instruments admissible but was not to make them available for use in law or equity. 6 In Weston v Metro Apartments Pty Ltd [2002] NSWSC 682 Campbell J was inclined to the opposite view on the basis that there seemed little point in admitting the documents if they could not be used for any purpose. However, his Honour declined to decide the issue at an interlocutory hearing. Instead, his Honour concluded that, where there was a serious question to be tried about the ability of an unstamped contract to give rise to an interest in land, then, if the balance of convenience favours the maintaining of the caveat, it should be maintained. 7 The issue raised by the decisions of Young CJ in Eq and Campbell J still appears to remain unresolved. In those circumstances, I think that I should follow the course adopted by Campbell J. I would not decide this application against the plaintiff because the instruments on which he relies are unstamped. 8 Recital A of the lease on which the plaintiff relies records: "The lessee has agreed to purchase from one Richard Andrews Anderson a Lame aircraft hangar situated at the Gunnedah Aerodrome."