Drake & Anor v Vineyard Marsden Park Schofield Investment Land Auctions [2007] NSWSC 668

Drake & Anor v Vineyard Marsden Park Schofield Investment Land Auctions [2007] NSWSC 668

The plaintiffs failed to prove that Siti Hariyani did not exist or that she was guilty of fraud in taking the transfer from Vineyard. The ordinary steps of giving a lapsing notice and transferring the land after the caveat lapsed, even in the context of a close relationship between the persons involved, were insufficient to establish fraud. Because the fraud exception to Real Property Act 1900, s 42(1) was not made out, the plaintiffs were not entitled to set aside the transfer or obtain transfer of the remaining four lots.

Jurisdiction
Australia
Judgment Date
28 June 2007
Procedural Posture
Summons / Trial; Summons Dismissed Except for Damages Claim
Outcome
Summons dismissed except for paragraphs 5, 6 and 7, which were stood over before the Registrar for directions.
Legal Topics
['indefeasibility of Title' 'fraud Exception' 'vendor Finance' 'caveats' 'transfer of Land']
['conveyancing' 'torrens Title' 'equity'] ['indefeasibility of Title' 'fraud Exception' 'vendor Finance' 'caveats' 'transfer of Land']

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Procedural Posture

Summons / Trial; Summons Dismissed Except for Damages Claim

Legal Issues

  1. 1 ['Whether the transfer of 14 lots from Vineyard Marsden Park Schofield Investment Land Auctions Pty Ltd to Siti Hariyani should be set aside on the basis of fraud within the exception to indefeasibility under Real Property Act 1900, s 42(1).' 'Whether the plaintiffs were entitled to be registered as proprietors of the four remaining lots and to orders for their transfer by Vineyard or Siti Hariyani.' "Whether Siti Hariyani did not exist or, if she did, took the transfers for no purpose other than to defeat the plaintiffs' interests."]

Ratio Decidendi

The plaintiffs failed to prove that Siti Hariyani did not exist or that she was guilty of fraud in taking the transfer from Vineyard. The ordinary steps of giving a lapsing notice and transferring the land after the caveat lapsed, even in the context of a close relationship between the persons involved, were insufficient to establish fraud. Because the fraud exception to Real Property Act 1900, s 42(1) was not made out, the plaintiffs were not entitled to set aside the transfer or obtain transfer of the remaining four lots.

Court Disposition

Summons dismissed except for paragraphs 5, 6 and 7, which were stood over before the Registrar for directions.

Orders

  • ['All but paragraphs 5, 6 and 7 of the summons dismissed.' 'Paragraphs 5, 6 and 7 of the summons stood over before the Registrar for directions at 9.30 am on Thursday 5 July 2007.']