Complex Scaffolding Solutions Pty Ltd v Abraham Doueihi [2014] NSWSC 230

Complex Scaffolding Solutions Pty Ltd v Abraham Doueihi [2014] NSWSC 230

On the assumption that clause 13 authorised the plaintiff to create a mortgage/charge by lodging a caveat, the first (current) caveat created such a security; however, as no mortgage duty was paid, that security—i.e. the mortgage so created—is unenforceable by operation of s 211 Duties Act 1997 (NSW). The court should not grant leave to lodge a new caveat to protect an unenforceable mortgage. The matter requires further submissions on whether the plaintiff may be entitled to create a new enforceable security by complying with duty requirements and properly exercising the relevant option in clause 13.

Jurisdiction
Australia
Judgment Date
12 March 2014
Procedural Posture
Interlocutory Application / Reasons for Judgment With Invitation for Further Submissions Before Final Judgment
Outcome
No final orders—parties invited to make further submissions before final judgment.
Legal Topics
['caveat' 'mortgage Duty' 'enforceability of Mortgages' 'interpretation of Contracts' 'leave to Lodge Caveat' 'duties Act 1997 (nsw)' 'real Property Act 1900 (nsw)']
['property Law' 'equity'] ['caveat' 'mortgage Duty' 'enforceability of Mortgages' 'interpretation of Contracts' 'leave to Lodge Caveat' 'duties Act 1997 (nsw)' 'real Property Act 1900 (nsw)']

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Procedural Posture

Interlocutory Application / Reasons for Judgment With Invitation for Further Submissions Before Final Judgment

Legal Issues

  1. 1 ["Whether the plaintiff is entitled to extend or lodge a new caveat over the defendant's property under contract clause 13;" 'Whether mortgage duty was required to be paid under Duties Act 1997 (NSW) on the agreement, caveat, or both;' 'Whether the mortgage or charge is enforceable if mortgage duty was not paid;' 'Proper construction of clause 13 of the agreement—whether it creates a charge/mortgage immediately, or only upon lodgement of a caveat;' 'Whether leave should be granted to lodge a new caveat under s 74O Real Property Act 1900 (NSW).']

Ratio Decidendi

On the assumption that clause 13 authorised the plaintiff to create a mortgage/charge by lodging a caveat, the first (current) caveat created such a security; however, as no mortgage duty was paid, that security—i.e. the mortgage so created—is unenforceable by operation of s 211 Duties Act 1997 (NSW). The court should not grant leave to lodge a new caveat to protect an unenforceable mortgage. The matter requires further submissions on whether the plaintiff may be entitled to create a new enforceable security by complying with duty requirements and properly exercising the relevant option in clause 13.

Court Disposition

No final orders—parties invited to make further submissions before final judgment.

Orders

  • ['Parties given opportunity to make further submissions as set out in par 60 and 61 of the reasons for judgment.' 'Any further submissions limited to construction of clause 13, application of Duties Act to current and new caveat, and exercise of discretion under s 74O Real Property Act.' 'Parties to advise within...