Syndication Capital Group Pty Limited v MDR Cornish Investments Pty Limited [2011] NSWSC 1289

Supreme Court New South Wales

Medium Neutral Citation: Syndication Capital Group Pty Limited v MDR Cornish Investments Pty Limited [2011] NSWSC 1289 Hearing dates: Thursday, 6 October 2011 Decision date: 06 October 2011 Jurisdiction: Equity Division - Duty List Before: Brereton J Decision: Caveat extended until further order. Catchwords: REAL PROPERTY - Application to extend operation of caveat - caveator must show claim has or may have substance - test akin to that for interlocutory injunctions - caveator claims interest described as 'equitable fee simple as purchaser of exchanged contract for sale' and as beneficiary of a constructive trust - seriously arguable that contracts exchanged and/or circumstances give rise to constructive trust exist - caveat said to be defective in form as deals with interest in four lots whilst contract pertained to only one lot - possible for plaintiff to obtain relief relating to whole of subject land - caveat also allegedly defective as misdescribes contract - defect overlooked under (NSW) Real Property Act 1900, s 74L - plaintiff has seriously arguable claim - balance of convenience factors include defendant being unable to obtain finance and incurring interest costs - plaintiff and plaintiff's principal proffer undertaking as to damages - Court will only allow caveator's priority to be jeopardised in rare circumstances - caveat extended. Legislation Cited: (NSW) Conveyancing Act 1919, s 57, s 60 (NSW) Real Property Act 1900, s 74K, s 74L Cases Cited: Fitzgibbons v Shaftsbury Pty Ltd [2011] NSWSC 525 Queensland Estate Pty Limited v Co-Ownership Land Development Pty Limited (1969) Qd R 150 Re Paul; (1912) 19 WN (NSW) 114 Re Henderson's Caveat (1998) 1 Qd R 632 Roclin Investments Pty Ltd v Makris (1974) 7 SASR 485 Category: Procedural and other rulings Parties: Syndication Capital Group Pty Limited (plaintiff) MDR Cornish Investments Pty Limited (defendant) Representation: Counsel: Dr B Glennon (plaintiff) Mr W Young (defendant) Solicitors: David H. Cohen & Co Solicitor (plaintiff) Bransgrove Lawyers (defendant) File Number(s): 2011/298904