Bares v Watson [2013] NSWSC 29

Bares v Watson [2013] NSWSC 29

There was a serious question to be tried as to the validity of the notice to complete and the dependent notice of termination because the contract was ambiguous about the beneficial interests in part A and the vacant lot, the vendors only asserted readiness to transfer part A although lot 6 had not been subdivided, and a Tootub Pty Limited caveat remained on title without evidence of arrangements for its withdrawal. Mr Watson also had an arguable charge for amounts paid under cl 2.8 if the contract had not been validly terminated. Although the existing caveat was defective in claiming a fee simple interest, the substance of an arguable caveatable interest was shown, and the balance of...

Jurisdiction
Australia
Judgment Date
16 January 2013
Procedural Posture
Procedural and Other Ruling in the Common Law Jurisdiction Concerning a Real Property Caveat and Sale of Land Contract / Application Following a Lapsing Notice, in Which the Defendants Sought Relief Under S 74 O of the Real Property Act 1900 (nsw) to Lodge a Further Caveat
Outcome
Defendants granted leave to lodge a further caveat; costs of the notice of motion and amended notice of motion ordered to be costs in the proceedings.
Legal Topics
['sale of Land' 'caveats' 'notice to Complete' 'termination of Contract' 'ready, Willing and Able to Complete' 'balance of Convenience' 'specific Performance']
['real Property' 'contract Law'] ['sale of Land' 'caveats' 'notice to Complete' 'termination of Contract' 'ready, Willing and Able to Complete' 'balance of Convenience' 'specific Performance']

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

Procedural and Other Ruling in the Common Law Jurisdiction Concerning a Real Property Caveat and Sale of Land Contract / Application Following a Lapsing Notice, in Which the Defendants Sought Relief Under S 74 O of the Real Property Act 1900 (nsw) to Lodge a Further Caveat

Legal Issues

  1. 1 ['Whether the caveat claiming a fee simple interest was defective where the contract for sale had not been completed' 'Whether there was a serious question to be tried as to the validity of the notice to complete' 'Whether the vendors were ready, willing and able to complete when the notice to complete was given' 'Whether the notice of termination was invalid because it depended on the notice to complete' 'Whether Mr Watson had a caveatable interest capable of protection by a further caveat' 'Whether the balance of convenience favoured maintaining the status quo by permitting a further caveat']

Ratio Decidendi

There was a serious question to be tried as to the validity of the notice to complete and the dependent notice of termination because the contract was ambiguous about the beneficial interests in part A and the vacant lot, the vendors only asserted readiness to transfer part A although lot 6 had not been subdivided, and a Tootub Pty Limited caveat remained on title without evidence of arrangements for its withdrawal. Mr Watson also had an arguable charge for amounts paid under cl 2.8 if the contract had not been validly terminated. Although the existing caveat was defective in claiming a fee simple interest, the substance of an arguable caveatable interest was shown, and the balance of...

Court Disposition

Defendants granted leave to lodge a further caveat; costs of the notice of motion and amended notice of motion ordered to be costs in the proceedings.

Orders

  • ['Leave granted pursuant to s 74O of the Real Property Act 1900 (NSW) for the defendants to lodge a further caveat describing more accurately the interest claimed.' 'Order made in accordance with prayer five of the amended notice of motion.' 'Costs of the notice of motion and amended notice of motion to be costs in...