Andrew Building Constructions Pty Limited v Machkevitch [2012] NSWSC 25

Supreme Court New South Wales

Medium Neutral Citation: Andrew Building Constructions Pty Limited v Machkevitch [2012] NSWSC 25 Hearing dates: 25 January 2011; 30 January 2011 & 7 - 8 February 2012 Decision date: 22 February 2012 Jurisdiction: Equity Division Before: Davies J Decision: 1. Upon the Plaintiff by its counsel giving the usual undertaking as to damages to the Court: a. The Defendant undertakes to the Court not to sell, transfer, mortgage, charge, encumber or otherwise deal with the land comprised in certificate of title folio identifier 4/SP85365 ("the Property"), or permit any of the same to be done, other than to discharge mortgage registered number AE369350 to Bank of Western Australia Limited over the Property ("the BankWest Mortgage") and to mortgage the Property to Permanent Custodians Limited ("the Mortgage") to secure an amount not greater than $2,056,000 ("the Limit"), to be advanced by Banksia Mortgages Limited to Girilang Developments Pty Ltd. b. The Defendant and Girilang Developments Pty Ltd undertake to the Court that the amount secured by the Mortgage shall be applied in discharge of the Bankwest Mortgage and in payment on deposit for interest in accordance with an offer dated 8 December 2011 forming exhibit AM 10 to the affidavit of Alexander Machkevitch of 23 January 2012, and thereafter by way of further advance to Girilang Developments Pty Ltd, up to a total advance not exceeding the Limit. c. The Defendant and Girilang Developments Pty Ltd undertake to the Court not to borrow any amount whereby the amount secured by the Mortgage that shall exceed the Limit. d. The Defendant undertakes to the Court that he will not lodge or attempt to lodge any lapsing notice or other dealing under the Real Property Act, 1900 at LPI in respect of the Property. e. The undertakings referred to in this paragraph 1 shall continue until the determination of these proceedings. 2. The Plaintiff to lodge in registrable form a withdrawal of caveat number AG712550 in respect of the Property. 3. Grant leave to the Plaintiff to file any Amended Statement of Claim by 22 February 2012. 4. Order the Defendant to file and serve his Defence by 14 March 2012. Catchwords: REAL PROPERTY - Torrens title - caveats against dealings - building contract -whether builder has caveatable interest - whether express right void under Home Building Act -unconscionable dealing - whether equitable lien - form of caveat - serious question to be tried. Legislation Cited: Home Building Act 1989 Real Property Act 1900 Cases Cited: Cadorange Pty Ltd v Tanga Holdings Pty Ltd (1990) 20 NSWLR 26 Circuit Finance Pty Ltd v Crown & Gleeson Securities Pty Ltd [2005] NSWSC 997 Graham H Roberts Pty Ltd v Maurbeth Investments Pty Ltd [1974] 1 NSWLR 93 HG & R Nominees Pty Ltd v Caulson Pty Ltd (2000) V Conv R 54-630 Hewett v Court (1983) 149 CLR 639 Hong Kong International Credit Ltd v Registrar of Titles [2012] WASC 17 ICI v Trade Practices Commission (1992) 38 FCR 248 Jackson v Crosby (No 2) (1979) 21 SASR 280 Kang v Kwan [2002] NSWSC 1187 Kell & Rigby Pty Ltd v Flurrie Pty Ltd [2006] NSWSC 906 Mellish v Fetoza [2007] NSWSC 790 Redland Bricks Ltd v Morris [1970] AC 652 Southern Cross Constructions (NSW) Pty Limited v Salfa Pty Limited (In Liquidation) (Receivers and Managers Appointed) [2009] NSWSC 634 Sutherland v Vale [2008] NSWSC 759 Syndication Capital Group Pty Limited v MDR Cornish Investments Pty Limited [2011] NSWSC 1289 Category: Interlocutory applications Parties: Andrew Building Constructions Pty Limited (Plaintiff) Alexandre Machkevitch (Defendant) Representation: D E Grieve QC & F G Kalyk (Plaintiff) S R Meehan (Defendant) William Cotsis & Associates (Plaintiff) Harris Friedman (Defendant) File Number(s): 2012/16415