Coleman v Hart-Hughes [2017] NSWSC 656

Coleman v Hart-Hughes [2017] NSWSC 656

The Deed was not illegal and had not been frustrated. Construing the Deed as a whole, including the acknowledgment of the plaintiff's caveatable interest, the authority to lodge a caveat, and the provisions for repayment from the project revenue and sale proceeds, the first defendant granted an equitable charge over the property to secure repayment of monies payable to the plaintiff under the Deed. The injunction sought under cl 4 was not appropriate because the obligation concerning variations had to be read with the good faith obligation in cl 9 and it was not necessarily a breach to register a varied plan without prior written agreement in all circumstances.

Jurisdiction
Australia
Judgment Date
26 May 2017
Procedural Posture
Amended Summons Seeking Declaratory Relief and an Injunction in the Equity Jurisdiction / Principal Judgment
Outcome
Declaration made as to the existence of an equitable charge; injunction refused; Amended Summons otherwise dismissed.
Legal Topics
['equitable Charges and Liens' 'caveatable Interests' 'joint Venture Deed' 'frustration' 'illegality' 'injunctions' 'declaratory Relief']
['real Property' 'equity' 'contract'] ['equitable Charges and Liens' 'caveatable Interests' 'joint Venture Deed' 'frustration' 'illegality' 'injunctions' 'declaratory Relief']

Case Brief

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Procedural Posture

Amended Summons Seeking Declaratory Relief and an Injunction in the Equity Jurisdiction / Principal Judgment

Legal Issues

  1. 1 ['Whether the Deed dated 4 July 2012 was invalid or unenforceable because of illegality.' 'Whether the Deed had been terminated by frustration.' 'Whether the Deed impliedly granted the plaintiff an equitable charge over the property to secure repayment of monies payable under the Deed.' 'Whether declaratory relief should be refused because it amounted to specific performance or would produce no foreseeable legal consequences.' "Whether an injunction should restrain the first defendant from registering any varied plan of sub-division without the plaintiff's written agreement."]

Ratio Decidendi

The Deed was not illegal and had not been frustrated. Construing the Deed as a whole, including the acknowledgment of the plaintiff's caveatable interest, the authority to lodge a caveat, and the provisions for repayment from the project revenue and sale proceeds, the first defendant granted an equitable charge over the property to secure repayment of monies payable to the plaintiff under the Deed. The injunction sought under cl 4 was not appropriate because the obligation concerning variations had to be read with the good faith obligation in cl 9 and it was not necessarily a breach to register a varied plan without prior written agreement in all circumstances.

Court Disposition

Declaration made as to the existence of an equitable charge; injunction refused; Amended Summons otherwise dismissed.

Orders

  • ['Declare that by Deed entered into on 4 July 2012 the first defendant granted an equitable charge to the plaintiff over Lot 2 in Deposited Plan 1086364 to secure repayment to the plaintiff of monies payable to him under the Deed.' 'Declare that pursuant to the said charge, and in the events that have happened, the...