Warner v Andrews [2011] NSWSC 956

Supreme Court New South Wales

Medium Neutral Citation: Warner v Andrews [2011] NSWSC 956 Hearing dates: 15/06/2011 Decision date: 15 June 2011 Jurisdiction: Equity Division - Duty List Before: Brereton J Decision: Application to extend operation of caveat refused. Net proceeds from sale of property to be paid into court or solicitor's controlled moneys account in proportion to plaintiff's interest in property as tenant in common. Catchwords: REAL PROPERTY - Caveats - application to extend operation - whether caveat has or may have substance - plaintiff contributed moneys to purchase of property - arguable claim to beneficial interest by way of resulting trust - caveat has or may have substance - misdescription of quantum of interest claimed - (NSW) Real Property Act s 74L allows court to disregard such misdescriptions where caveatable interest exists - balance of convenience - defendant in situation of personal hardship requiring moneys from sale of property - if interest asserted by caveat upheld defendant would be entitled to have property sold pursuant to (NSW) Real Property Act s 66G as property would be held as tenants in common - defendant proposes to sell property and pay proceeds of sale into court equivalent to plaintiff's arguable share - plaintiff concurs with proposal - most apposite course not to extend caveat but grant injunctive relief to give effect to defendant's proposal. Legislation Cited: (NSW) Conveyancing Act 1919, s 66G (NSW) Real Property Act 1900, s 74L Cases Cited: Australian Property & Management Pty Ltd v Devefi Pty Ltd (1997) 7 BPR 15,255 Buchanan V Crown & Gleeson Business Finance Pty Limited [2006] NSWSC 1465 Currie v Hamilton [1984] NSWLR 68 Custom Credit Corporation Limited v Ravi Nominees Pty Limited (1992) 8 WAR 42 Esther Investments Pty Ltd v Wilson International Pty Ltd [1982] ANZ ConvR 647 Little v Little (1988) 15 NSWLR 43 Oceanview Group Holdings v Balaz [2006] NSWSC 1469 Ryan v Dries [2002] NSWCA 3 Shepherd v Doolan & Ors [2005] NSWSC 42 Windella (NSW) Pty Ltd v Hughes (1999) 49 NSWLR 158 Category: Procedural and other rulings Parties: John William Warner (plaintiff) Alison Jean Andrews (defendant) Representation: Counsel: Ms A Cotter-Moroz (plaintiff) Ms M Painter (defendant) Solicitors: DH Dwyer Forbes & Yeo (plaintiff) Slade Manwaring (defendant) File Number(s): 11/183829