Cappello v HomeBuilding Pty Ltd [2023] NSWCA 61

Cappello v HomeBuilding Pty Ltd [2023] NSWCA 61

Leave to lodge a further caveat was appropriate because the respondent had a caveatable interest arising from the home building contract and s 7D of the Home Building Act 1989 (NSW); any stay of enforcement did not negate that interest; s 56 of the Real Property Act 1900 (NSW) was immaterial because the interest arose from the contract and statute rather than an instrument under the Real Property Act; the respondent had attempted to maintain the caveat and there was no significant delay or identified prejudice after lapse; and the applicants' judicial review summons had limited prospects on the material before the Court.

Jurisdiction
Australia
Judgment Date
28 March 2023
Procedural Posture
Judicial Review Proceeding; Interlocutory Application for Leave to Lodge a Further Caveat / Notice of Motion Filed 6 February 2023 Before the Court of Appeal
Outcome
Leave granted to the respondents to lodge a further caveat; balance of notice of motion dismissed; costs of the motion to be costs in the proceedings.
Legal Topics
['leave to Lodge Further Caveat' 'caveatable Interest' 'charge Over Land Under Home Building Contract' 'supervisory Jurisdiction' 'costs Assessment']
['procedure' 'property Law' 'home Building'] ['leave to Lodge Further Caveat' 'caveatable Interest' 'charge Over Land Under Home Building Contract' 'supervisory Jurisdiction' 'costs Assessment']

Case Brief

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Procedural Posture

Judicial Review Proceeding; Interlocutory Application for Leave to Lodge a Further Caveat / Notice of Motion Filed 6 February 2023 Before the Court of Appeal

Legal Issues

  1. 1 ["Whether leave should be granted under s 74O of the Real Property Act 1900 (NSW) to lodge a further caveat over the applicants' land after an earlier caveat lapsed." 'Whether the respondent had a caveatable interest arising from cll 27 and 30 of the home building contract and s 7D of the Home Building Act 1989 (NSW).' 'Whether any continuing stay of the costs judgments affected the existence of a caveatable interest.' 'Whether alleged non-compliance with s 56 of the Real Property Act 1900 (NSW) defeated the claimed caveatable interest.' "Whether the applicants' summons for judicial review of the District Court judgment had sufficient prospects to weigh against granting leave."]

Ratio Decidendi

Leave to lodge a further caveat was appropriate because the respondent had a caveatable interest arising from the home building contract and s 7D of the Home Building Act 1989 (NSW); any stay of enforcement did not negate that interest; s 56 of the Real Property Act 1900 (NSW) was immaterial because the interest arose from the contract and statute rather than an instrument under the Real Property Act; the respondent had attempted to maintain the caveat and there was no significant delay or identified prejudice after lapse; and the applicants' judicial review summons had limited prospects on the material before the Court.

Court Disposition

Leave granted to the respondents to lodge a further caveat; balance of notice of motion dismissed; costs of the motion to be costs in the proceedings.

Orders

  • ['Pursuant to s 74O(2a) of the Real Property Act 1900, grant leave to the respondents to lodge a further caveat on lot 10/1247934, land known as 39 Empire Street, Haberfield, New South Wales in the terms of the caveat which was lodged on 1 March 2021, subject to the amendment of the clause referring to the lack of...