Rushcutters Bay Developments Pty Limited v Dragon Asset Investment Pty Limited [2016] NSWSC 1324

Rushcutters Bay Developments Pty Limited v Dragon Asset Investment Pty Limited [2016] NSWSC 1324

The purchaser did not establish a serious question to be tried or prima facie case for relief against forfeiture or specific performance because the July 2016 failures to pay deposits were breaches of essential obligations, were not shown to have been caused by the vendor, and the vendor's termination was not arguably unconscientious. The vendor did not establish a serious question or prima facie case for an equitable lien over lots 31 and 136 because the price for those lots had been paid in full under the Fifth Deed of Variation and the unpaid amounts related to lots 134 and 135, not to the conveyed lots.

Jurisdiction
Australia
Judgment Date
19 September 2016
Procedural Posture
Equity Proceedings Concerning Caveats Under the Real Property Act 1900 (nsw) Arising From a Contract for Sale of Land / Notice of Motion for Extension of Purchaser's Caveat Under S 74 K and Notice of Motion for Withdrawal of Vendor's Caveat Under S 74 MA
Outcome
Order extending the operation of the purchaser's caveat refused; order made requiring withdrawal of the vendor's caveat over lots 31 and 136; costs ordered on the motions.
Legal Topics
['caveats' "purchaser's Equitable Interest" "vendor's Lien" 'relief Against Forfeiture' 'specific Performance' 'contract for Sale of Land' 'serious Question to Be Tried' 'prima Facie Case']
['real Property' 'equity'] ['caveats' "purchaser's Equitable Interest" "vendor's Lien" 'relief Against Forfeiture' 'specific Performance' 'contract for Sale of Land' 'serious Question to Be Tried' 'prima Facie Case']

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Procedural Posture

Equity Proceedings Concerning Caveats Under the Real Property Act 1900 (nsw) Arising From a Contract for Sale of Land / Notice of Motion for Extension of Purchaser's Caveat Under S 74 K and Notice of Motion for Withdrawal of Vendor's Caveat Under S 74 MA

Legal Issues

  1. 1 ['Whether the purchaser showed a serious question to be tried or prima facie case for relief against forfeiture and specific performance sufficient to extend the operation of its caveat under s 74K of the Real Property Act 1900 (NSW).' "Whether the vendor had a serious question to be tried or prima facie case that it held an equitable vendor's lien over lots 31 and 136 for unpaid deposits relating to lots 134 and 135." "Whether an order should be made under s 74MA of the Real Property Act 1900 (NSW) requiring withdrawal of the vendor's caveat over lots 31 and 136."]

Ratio Decidendi

The purchaser did not establish a serious question to be tried or prima facie case for relief against forfeiture or specific performance because the July 2016 failures to pay deposits were breaches of essential obligations, were not shown to have been caused by the vendor, and the vendor's termination was not arguably unconscientious. The vendor did not establish a serious question or prima facie case for an equitable lien over lots 31 and 136 because the price for those lots had been paid in full under the Fifth Deed of Variation and the unpaid amounts related to lots 134 and 135, not to the conveyed lots.

Court Disposition

Order extending the operation of the purchaser's caveat refused; order made requiring withdrawal of the vendor's caveat over lots 31 and 136; costs ordered on the motions.

Orders

  • ["That the defendant's Notice of Motion filed on 29 August 2016 be dismissed with costs." 'That the plaintiff withdraw caveat number AK614859 by 4pm on 20 September 2016.' "That the plaintiff pay the defendant's costs of the defendant's Notice of Motion filed on 16 September 2016."]