International Computer Network Pty Ltd v Lumos International Pty Ltd [2018] NSWSC 1793

Supreme Court New South Wales

Medium Neutral Citation: International Computer Network Pty Ltd v Lumos International Pty Ltd [2018] NSWSC 1793 Hearing dates: 9 November 2018 Date of orders: 12 November 2018 Decision date: 21 November 2018 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. Order pursuant to s 74MA of the Real Property Act 1900 (NSW) and in the inherent jurisdiction of the Court that the plaintiff forthwith withdraw caveat AN398997Q registered over Lot 703 in DP 854202. 2. Subject to the usual undertaking as to damages being proffered by the Second Defendant and to the second defendant filing in court a formal undertaking to the effect of the undertaking that has been proffered in the course of the hearing of the motion (namely an undertaking that it will hold the two units not the subject of contracts for sale to third parties as security for any damages to which the plaintiff may be entitled on the final hearing of these proceedings and that it will take all reasonable steps to discharge any mortgage over the property that includes those mortgages as soon as practicable) and an undertaking that on the removal of the caveat the second defendant will lodge, with the strata plan in relation to the development, the strata by-law that has been prepared in respect of the conveyance of the land the subject of the right of way to ICN. 3. Costs be costs in the cause. Catchwords: LAND LAW – second defendant's application to remove plaintiff's caveat pursuant to s 74MA of the Real Property Act 1900 (NSW) or the inherent jurisdiction of the Court – plaintiff's caveat claimed equitable interest in second defendant's property commensurate with right to obtain specific performance of conveyance of part of the property – second defendant had constructed units on the property, subject to off-the-plan contracts – plaintiff's caveat prevent registration of strata plan and subsequent completion of off-the-plan contracts – second defendant's development loan called in by bank – second defendant unable to repay loan until completion of off-the-plan contracts – plaintiff offered no undertaking as to damages – balance of convenience favours the removal of caveat, subject to the plaintiff giving undertakings regarding alternative security Legislation Cited: Conveyancing Act 1919 (NSW), s 88K Real Property Act 1900 (NSW), s 74MA, 74P Strata Schemes Management Act 2015 (NSW), s 139 Cases Cited: Australian Security Estates Pty Ltd v Bluecrest Holdings Pty Ltd (1999) 9 BPR 17,533; [1999] NSWSC 524 Beca Developments Pty Ltd v Idameneo (No 92) Pty Ltd (1990) 21 NSWLR 459 Boscolo v TCN Channel Nine Pty Ltd (No 2) (New South Wales Supreme Court, Eq Div, 28 April 1994, unreported) Coscom Pty Ltd v Standing Enterprises Pty Ltd [2006] NSWSC 114 Dunecar Pty Ltd (in liq) v Colbron (2001) 40 ACSR 342; [2001] NSWSC 1181 Hanson Construction Materials Pty Ltd v Roberts (2016) 93 NSWLR 1; [2016] NSWCA 240 His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Incorporated (No 2) [2007] NSWCA 142 State of New South Wales v Gevaux [2011] NSWSC 758 Category: Procedural and other rulings Parties: International Computer Network Pty Ltd (Plaintiff) Lumos International Pty Ltd (First Defendant) Talon Construction Group Pty Ltd (Second Defendant) Representation: Counsel: GM McGrath (Plaintiff) AP Cheshire SC (First Defendant) JB Conomy (Second Defendant)