Alka Developments P/L v Lemery Holdings P/L [2005] NSWSC 1335

Alka Developments P/L v Lemery Holdings P/L [2005] NSWSC 1335

Although there was a seriously arguable case that the withdrawal of caveat handed over at completion was forged and that Lemery was implicated, Alka's contractual cause of action for breach of cl 16.3 was doubtful because questions of title usually merge on completion. Even if a contractual or deceit claim were available, the likely recoverable damages appeared very small. While there was a serious risk that funds released to Lemery would be paid to associates or family members and put beyond creditors' reach, the doubtful substance and small quantum of Alka's claim meant the balance of convenience did not justify the extraordinary interlocutory remedy of a Mareva order.

Jurisdiction
Australia
Judgment Date
07 October 2005
Procedural Posture
Equity Division Proceedings Concerning Interlocutory Mareva Type Relief and Release of a Deposit Under a Contract for Sale of Land / Interlocutory Application; Ex Tempore Judgment Revised 19 December 2005
Outcome
Alka's application for interlocutory Mareva-type relief was dismissed, and the balance deposit was to be released to Lemery subject to a short stay.
Legal Topics
['mareva Injunctions' 'prima Facie Cause of Action' 'risk of Dissipation' 'balance of Convenience' 'vendor and Purchaser After Completion' 'merger' 'alleged Forged Withdrawal of Caveat' 'release of Deposit']
['equity' 'conveyancing' 'civil Procedure'] ['mareva Injunctions' 'prima Facie Cause of Action' 'risk of Dissipation' 'balance of Convenience' 'vendor and Purchaser After Completion' 'merger' 'alleged Forged Withdrawal of Caveat' 'release of Deposit']

Case Brief

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Procedural Posture

Equity Division Proceedings Concerning Interlocutory Mareva Type Relief and Release of a Deposit Under a Contract for Sale of Land / Interlocutory Application; Ex Tempore Judgment Revised 19 December 2005

Legal Issues

  1. 1 ['Whether Alka established a prima facie cause of action against Lemery sufficient to support Mareva-type relief.' "Whether there was a danger that Lemery would remove, dispose of or otherwise dissipate assets so that any judgment in Alka's favour would not be satisfied." "Whether the strength and likely quantum of Alka's claim justified the exceptional interlocutory remedy sought." 'Whether damages could be claimed after completion for failure to convey unencumbered title, given questions of merger after completion.']

Ratio Decidendi

Although there was a seriously arguable case that the withdrawal of caveat handed over at completion was forged and that Lemery was implicated, Alka's contractual cause of action for breach of cl 16.3 was doubtful because questions of title usually merge on completion. Even if a contractual or deceit claim were available, the likely recoverable damages appeared very small. While there was a serious risk that funds released to Lemery would be paid to associates or family members and put beyond creditors' reach, the doubtful substance and small quantum of Alka's claim meant the balance of convenience did not justify the extraordinary interlocutory remedy of a Mareva order.

Court Disposition

Alka's application for interlocutory Mareva-type relief was dismissed, and the balance deposit was to be released to Lemery subject to a short stay.

Orders

  • ['In proceedings 5058 of 2005, dismiss the application for interlocutory relief contained in paragraphs 1, 2 and 3 of the summons.' "In proceedings 5058 of 2005, order that the plaintiff pay the defendant's costs of the application." 'In proceedings 5058 of 2005, stand the summons over to 9.30am on 21 October 2005...