Weston and Cussen as liquidators of Karl Suleman Enterprizes Pty Ltd v Metro Apartments Pty Limited & Anor [2002] NSWSC 682

Weston and Cussen as liquidators of Karl Suleman Enterprizes Pty Ltd v Metro Apartments Pty Limited & Anor [2002] NSWSC 682

While unstamped contracts cannot generally be relied on, s 304(2) Duties Act 1997 permits their admission into evidence upon arrangements for stamping. There is a serious question to be tried as to whether an equitable charge exists to support a caveat on units 41 and 42, but not unit 43. The existing caveat is not extended, but leave is granted to lodge a new, more limited caveat for the sustainable claim.

Parties
Plaintiffs: Paul G Weston & Neil R Cussen (Liquidators of Karl Suleman Enterprizes Pty Ltd); First Defendant: Metro Apartments Pty Limited; Second Defendant: James Jariv
Jurisdiction
Australia
Judgment Date
26 July 2002
Procedural Posture
Interlocutory Application / Application to Extend Caveat
Outcome
Application to extend caveat refused; leave granted to file new caveat in limited terms; costs of application to be plaintiffs' costs in the cause.
Legal Topics
Stamp Duties, Caveat, Equitable Charge, Land Titles Under Torrens System
Equity Property Law Stamp Duties Caveat Equitable Charge Land Titles Under Torrens System

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Parties

Paul G Weston & Neil R Cussen (Liquidators of Karl Suleman Enterprizes Pty Ltd)

Plaintiffs

Metro Apartments Pty Limited

First Defendant

James Jariv

Second Defendant

Procedural Posture

Interlocutory Application / Application to Extend Caveat

Legal Issues

  1. 1 Whether an unstamped instrument can create a caveatable interest in land
  2. 2 Whether a caveat can be extended in part or requires a new caveat for limited claims
  3. 3 Whether there is a serious question to be tried as to the existence of an equitable charge over land

Ratio Decidendi

While unstamped contracts cannot generally be relied on, s 304(2) Duties Act 1997 permits their admission into evidence upon arrangements for stamping. There is a serious question to be tried as to whether an equitable charge exists to support a caveat on units 41 and 42, but not unit 43. The existing caveat is not extended, but leave is granted to lodge a new, more limited caveat for the sustainable claim.

Court Disposition

Application to extend caveat refused; leave granted to file new caveat in limited terms; costs of application to be plaintiffs' costs in the cause.

Orders

  • Leave granted to plaintiffs to lodge a further caveat against land comprised in folio identifier 41/SP65936 and 42/SP65936, in the same terms as previous caveat but deleting claim as equitable owner of fee simple.
  • Usual undertaking as to damages to be given by plaintiffs.