Williamson v Scarano [2010] NSWSC 975

New South Wales Supreme Court

CITATION : Williamson v Scarano [2010] NSWSC 975

HEARING DATE(S) : 24/08/10

JUDGMENT DATE : 24 August 2010

JURISDICTION : Equity

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 24 August 2010

DECISION : 1. Order that the plaintiff's notice of motion filed on 17 August 2010 be dismissed. 2. Order that the plaintiff pay the defendant's costs of and incidental to the notice of motion.

CATCHWORDS : REAL PROPERTY – application pursuant to Real Property Act 1900, s 74K(2) to extend caveat – where plaintiff claimed equitable interest as beneficiary under constructive trust or as equitable chargee – where plaintiff alleged that parties had common intention for plaintiff to obtain half interest in property and plaintiff made monetary and non-monetary contributions, occupied property and made improvements in furtherance of common intention – where no allegation by plaintiff that plaintiff incurred costs of materials for improvements – where extent of plaintiff's evidence on application was affidavit verifying statement of claim – where plaintiff relied only on caveat and statement of claim to establish claim – evidence deficient to establish serious question to be tried that caveat has substance – plaintiff's claim of constructive trust or equitable charge unlikely to succeed even if facts alleged in statement of claim treated as evidence– balance of convenience favours defendant – real prospect that defendant would suffer loss if caveat extended – plaintiff unlikely on evidence to be able to satisfy undertaking as to damages

LEGISLATION CITED : Real Property Act 1900 (NSW)

Deabel v V'Landys [2002] NSWSC 438 CASES CITED : ICM Agriculture Pty Ltd v Young [2009] FCA 109 Glew v Harrowell of Hunt & Hunt Lawyers [2003] FCA 373