Break Fast Investments Pty Ltd v C & O Voukidis Pty Ltd [2011] NSWSC 871

Break Fast Investments Pty Ltd v C & O Voukidis Pty Ltd [2011] NSWSC 871

The Caveat did not describe an interest which had or might have substance for the purposes of s 74K(2) because, read as a whole, it was apt to describe a resulting trust based on contributions to purchase and associated payments, while Break Fast relied on a constructive trust arising from alleged breach of fiduciary duty, knowing receipt, and use of trust moneys to renovate or pay mortgages over the properties. Section 74L could not cure that substantive failure. The application to extend the Caveat therefore had to be dismissed, but COV's concession established a serious question to be tried as to a constructive trust and the balance of convenience favoured granting leave, for abundant...

Jurisdiction
Australia
Judgment Date
15 August 2011
Procedural Posture
Application Under S 74 K of the Real Property Act 1900 (nsw) to Extend the Operation of a Caveat / Interlocutory Application
Outcome
Application for order extending caveat declined. Leave granted to lodge further caveat.
Legal Topics
['caveats' 'constructive Trust' 'resulting Trust' 'balance of Convenience' 'undertaking as to Damages' 'leave to Lodge Further Caveat']
['property Law' 'equity'] ['caveats' 'constructive Trust' 'resulting Trust' 'balance of Convenience' 'undertaking as to Damages' 'leave to Lodge Further Caveat']

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Procedural Posture

Application Under S 74 K of the Real Property Act 1900 (nsw) to Extend the Operation of a Caveat / Interlocutory Application

Legal Issues

  1. 1 ['Whether the interest claimed by Break Fast in the Caveat was properly sustainable so far as it relied on the constructive trust claimed in the Victorian proceedings.' 'Whether the balance of convenience favoured extension of the Caveat over the Properties.' "Whether Break Fast's undertaking as to damages was sufficient to protect COV's interests." 'Whether leave should be granted under s 74O of the Real Property Act 1900 (NSW) to lodge a further caveat.']

Ratio Decidendi

The Caveat did not describe an interest which had or might have substance for the purposes of s 74K(2) because, read as a whole, it was apt to describe a resulting trust based on contributions to purchase and associated payments, while Break Fast relied on a constructive trust arising from alleged breach of fiduciary duty, knowing receipt, and use of trust moneys to renovate or pay mortgages over the properties. Section 74L could not cure that substantive failure. The application to extend the Caveat therefore had to be dismissed, but COV's concession established a serious question to be tried as to a constructive trust and the balance of convenience favoured granting leave, for abundant...

Court Disposition

Application for order extending caveat declined. Leave granted to lodge further caveat.

Orders

  • ['Parties directed to bring in Short Minutes of Order to give effect to the reasons.' 'Expected orders to provide for the Plaintiff to withdraw the Caveat by a specified date.' 'Expected orders to provide for leave to the Plaintiff to lodge a further caveat in respect of the Properties claiming an interest as...