Burrell Solicitors Pty Ltd v Reavill Farm Pty Limited & Ors (No. 2) [2011] NSWSC 1615

Supreme Court New South Wales

Medium Neutral Citation: Burrell Solicitors Pty Ltd v Reavill Farm Pty Limited & Ors (No. 2) [2011] NSWSC 1615 Hearing dates: Friday, 2 December 2011 Decision date: 22 December 2011 Jurisdiction: Equity Division - Duty List Before: White J Decision: Refer to para [89] of judgment. Catchwords: REAL PROPERTY - caveats - application for leave to lodge fresh caveats - s 74O, Real Property Act 1900 - whether serious question to be tried that plaintiffs have caveatable interest - where plaintiff has second mortgage securing payment of legal costs payable "under" tax invoices rendered to defendants - where plaintiff did not comply with disclosure obligations under Pt 3.2 Div 3 of Legal Profession Act 2004 - defendants not liable to pay amount claimed in invoices until costs have been assessed, s 317 Legal Profession Act 2004 - legal costs not payable by defendant to plaintiff "under" tax invoices - they would be due under certificate of determination of costs as assessed - no debt is or will be secured by the mortgage - leave to lodge fresh caveat refused

REAL PROPERTY - caveats - application for leave to lodge fresh caveats - s 74O Real Property Act 1900 - where agreement to apply net proceeds of sale of properties in reduction of debt owed by defendants to plaintiffs - where no presently payable debt - where debt may arise following assessment of legal costs under Pt 3.2 Div 11 of Legal Profession Act 2004 - fact that not a presently a debt payable to plaintiff does not mean plaintiff is not entitled to have net proceeds of sale of properties applied in due course in reduction of such debt when it becomes owing and payable - serious question to be tried that agreement should be specifically enforced - interests claimed caveatable interests - balance of convenience favours the grant of leave to lodge fresh caveats Legislation Cited: Real Property Act 1900 Legal Profession Act 2004 Land and Environment Court Act 1979 Cases Cited: Burrell Solicitors Pty Ltd v Reavill Farm Pty Ltd & Ors [2011] NSWSC 1602 Davies v Uratoriu (1995) 6 BPR 13,917 at 13,923-13,924; DTC No. 1 v Matthews [2009] NSWSC 568 Maguire v Makaronis [1997] HCA 23; (1997) 188 CLR 449 The Mortgage Insurance Corporation (Limited) v Pound (1895) 64 LJQB 394 Gigi Entertainment Pty Ltd v Macree (No. 2) [2011] NSWSC 869 Category: Interlocutory applications Parties: Burrell Solicitors Pty Ltd (Plaintiff) Reavill Farm Pty Ltd (1st Defendant) Champions Quarry Pty Ltd (2nd Defendant) Macabil Pty Ltd (3rd Defendant) Jeff Francis Champion (4th Defendant) Diana Christine Champion (5th Defendant) Representation: L T Livingstone (Plaintiff) 4th defendant in person (Defendants) Burrell Solicitors (Plaintiff) N/A (Defendants) File Number(s): 2011/365912