Kondylis v Bacic [2017] NSWSC 66

Kondylis v Bacic [2017] NSWSC 66

The defendant's asserted entitlement was to payment from the proceeds of sale, not to an interest in the land, and therefore was not capable of supporting the caveat. However, because the plaintiff had promised to pay at least $35,000 and up to $50,000 from the proceeds of sale, equity required the plaintiff to pay $50,000 into her solicitor's trust account or controlled moneys account as a condition of the caveat's withdrawal. The defendant's monetary claim was within the jurisdiction of the Local Court, so the proceedings were transferred there.

Jurisdiction
Australia
Judgment Date
08 February 2017
Procedural Posture
Application Pursuant to S 74 MA of the Real Property Act 1900 (nsw) for an Order That the Defendant Withdraw a Caveat Lodged Over the Plaintiff's Land / Equity Duty List Procedural Ruling
Outcome
Caveat ordered to be withdrawn; plaintiff ordered to pay $50,000 from the proceeds of sale into her solicitor's trust account or controlled moneys account; proceedings transferred to the Local Court; no order as to costs.
Legal Topics
['torrens Title' 'caveats Against Dealings' 'caveatable Interest' 'proceeds of Sale' 'transfer to Local Court']
['real Property' 'equity' 'home Building'] ['torrens Title' 'caveats Against Dealings' 'caveatable Interest' 'proceeds of Sale' 'transfer to Local Court']

Case Brief

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Procedural Posture

Application Pursuant to S 74 MA of the Real Property Act 1900 (nsw) for an Order That the Defendant Withdraw a Caveat Lodged Over the Plaintiff's Land / Equity Duty List Procedural Ruling

Legal Issues

  1. 1 ["Whether the defendant's claim to payment from the proceeds of sale was an interest capable of supporting a caveat over the plaintiff's land." 'Whether the plaintiff should be required to pay money into a controlled moneys account as a condition of withdrawal of the caveat.' 'Whether the proceedings should be transferred to the Local Court.']

Ratio Decidendi

The defendant's asserted entitlement was to payment from the proceeds of sale, not to an interest in the land, and therefore was not capable of supporting the caveat. However, because the plaintiff had promised to pay at least $35,000 and up to $50,000 from the proceeds of sale, equity required the plaintiff to pay $50,000 into her solicitor's trust account or controlled moneys account as a condition of the caveat's withdrawal. The defendant's monetary claim was within the jurisdiction of the Local Court, so the proceedings were transferred there.

Court Disposition

Caveat ordered to be withdrawn; plaintiff ordered to pay $50,000 from the proceeds of sale into her solicitor's trust account or controlled moneys account; proceedings transferred to the Local Court; no order as to costs.

Orders

  • ['Order that by 11am on 9 February 2017, the Defendant withdraw caveat number AM54293A that has been lodged in respect of the land in Folio Identifier 116/526733.' "Order that, from the proceeds of sale to be obtained by the Plaintiff on completion of the Contract for Sale of the property in Folio Identifier...