Chateau Constructions (Aust) Ltd v Zepinic & Anor [No 3] [2009] NSWSC 1373

Chateau Constructions (Aust) Ltd v Zepinic & Anor [No 3] [2009] NSWSC 1373

The Court was satisfied that the defendants had adequate notice of the hearing and had deliberately chosen not to attend or be represented. Chateau established both the existence of a charge over the Turramurra property under the building contract and the amount secured, being the $370,847.35 ordered by the CTTT, and the District Court appeal had been dismissed. The caveat satisfied the conditions in s 7D(3) of the Home Building Act 1989 (NSW), so that Act did not prevent the declaration. Chateau was entitled to indemnity costs because the defendants unreasonably failed to accept a Calderbank offer that substantially foreshadowed the result achieved.

Jurisdiction
Australia
Judgment Date
03 December 2009
Procedural Posture
Equity Proceedings Seeking a Declaration of Equitable Charge Over Land and Consequential Relief Following Extension of a Caveat / Ex Tempore Principal Judgment on Final Declaratory Relief, Indemnity Costs and Directions for Consequential Relief
Outcome
Declaration made that the defendants charged the property with payment to Chateau of $370,847.35 plus interest; indemnity costs ordered; leave granted to file an amended summons for consequential relief; directions made for service and further hearing.
Legal Topics
['declaration of Equitable Charge Over Property' 'extension of Caveat' 'proceeding in Absence of Defendants After Notice' 'calderbank Offer' 'indemnity Costs' 'consequential Relief']
['equity' 'civil Procedure' 'costs' 'real Property' 'home Building'] ['declaration of Equitable Charge Over Property' 'extension of Caveat' 'proceeding in Absence of Defendants After Notice' 'calderbank Offer' 'indemnity Costs' 'consequential Relief']

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Procedural Posture

Equity Proceedings Seeking a Declaration of Equitable Charge Over Land and Consequential Relief Following Extension of a Caveat / Ex Tempore Principal Judgment on Final Declaratory Relief, Indemnity Costs and Directions for Consequential Relief

Legal Issues

  1. 1 ['Whether there was sufficient evidence of notice to Dr and Mrs Zepinic to justify the Court proceeding with the hearing in their absence' 'Whether the Court should declare that Dr and Mrs Zepinic charged the property with due payment to Chateau of $370,847.35 plus interest' 'Whether an indemnity costs order should be made against the Zepinics' 'If the declaration was made, whether Chateau should be granted consequential relief']

Ratio Decidendi

The Court was satisfied that the defendants had adequate notice of the hearing and had deliberately chosen not to attend or be represented. Chateau established both the existence of a charge over the Turramurra property under the building contract and the amount secured, being the $370,847.35 ordered by the CTTT, and the District Court appeal had been dismissed. The caveat satisfied the conditions in s 7D(3) of the Home Building Act 1989 (NSW), so that Act did not prevent the declaration. Chateau was entitled to indemnity costs because the defendants unreasonably failed to accept a Calderbank offer that substantially foreshadowed the result achieved.

Court Disposition

Declaration made that the defendants charged the property with payment to Chateau of $370,847.35 plus interest; indemnity costs ordered; leave granted to file an amended summons for consequential relief; directions made for service and further hearing.

Orders

  • ['The Defendants have charged the land situated at 34 Turramurra Avenue, Turramurra in the State of New South Wales (folio identifier A/348843) with due payment to the Plaintiff of $370,847.35 plus interest (at a rate equal to the rate for the time being prescribed for the purposes of section 101 of the Civil...