Andrew Building Constructions Pty Limited v Machkevitch [2012] NSWSC 25

Andrew Building Constructions Pty Limited v Machkevitch [2012] NSWSC 25

There is a serious question to be tried as to whether the plaintiff has an equitable lien or constructive trust over Unit 4 arising from the defendant’s unconscionable conduct in transferring the property and winding up the debtor company to the prejudice of the plaintiff’s claim, even though an express right in the Deed of Variation to lodge a caveat is void under s 7D of the Home Building Act 1989. On the balance of convenience, undertakings are required to permit refinancing but otherwise to preserve the plaintiff’s ability to secure its claim.

Jurisdiction
Australia
Judgment Date
22 February 2012
Procedural Posture
Interlocutory Application / Application to Extend Operation of Caveat (interlocutory)
Outcome
Orders made to remove caveat after undertakings preserving equity; leave granted to amend pleadings; directions for further conduct of proceedings.
Legal Topics
['torrens Title' 'caveats Against Dealings' 'building Contract' 'caveatable Interest' 'home Building Act' 'unconscionable Dealing' 'equitable Lien' 'serious Question to Be Tried']
['real Property' 'equity'] ['torrens Title' 'caveats Against Dealings' 'building Contract' 'caveatable Interest' 'home Building Act' 'unconscionable Dealing' 'equitable Lien' 'serious Question to Be Tried']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Interlocutory Application / Application to Extend Operation of Caveat (interlocutory)

Legal Issues

  1. 1 ['Whether the plaintiff has a caveatable interest in Unit 4 owned by the defendant under the building-related agreements.' 'Whether any express right to lodge a caveat is void under s 7D of the Home Building Act 1989.' 'Whether the conduct of the defendant amounts to unconscionable dealing giving rise to a constructive trust or equitable lien.' 'Whether the form and content of the caveat suffices to support its continuation.']

Ratio Decidendi

There is a serious question to be tried as to whether the plaintiff has an equitable lien or constructive trust over Unit 4 arising from the defendant’s unconscionable conduct in transferring the property and winding up the debtor company to the prejudice of the plaintiff’s claim, even though an express right in the Deed of Variation to lodge a caveat is void under s 7D of the Home Building Act 1989. On the balance of convenience, undertakings are required to permit refinancing but otherwise to preserve the plaintiff’s ability to secure its claim.

Court Disposition

Orders made to remove caveat after undertakings preserving equity; leave granted to amend pleadings; directions for further conduct of proceedings.

Orders

  • ['Upon the plaintiff giving the usual undertaking as to damages, the defendant undertakes not to sell, transfer, mortgage, charge, encumber, or otherwise deal with the land (except as specified for refinancing and limited mortgage).' 'Defendant and Girilang Developments Pty Ltd undertake the mortgage will be applied...