Michael John Smith trading as Michael Smith Constructions v Avibe Pty Ltd [2006] NSWSC 1402

Michael John Smith trading as Michael Smith Constructions v Avibe Pty Ltd [2006] NSWSC 1402

Clause 28 of the contract creates a charge at the moment of contract, rather than only upon judgment, thus falling foul of s 7D of the Home Building Act 1989 and failing to support an extension of the caveat.

Jurisdiction
Australia
Judgment Date
08 December 2006
Procedural Posture
Application to Extend Caveat / Judgment
Outcome
Application to extend caveat dismissed with costs.
Legal Topics
['caveat Extension' 'charges in Building Contracts' 'consumer Protection' 'home Building Act Compliance']
['conveyancing' 'building and Construction'] ['caveat Extension' 'charges in Building Contracts' 'consumer Protection' 'home Building Act Compliance']

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Procedural Posture

Application to Extend Caveat / Judgment

Legal Issues

  1. 1 ['Whether clause 28 of the building contract creates a valid charge over land under s 7D of the Home Building Act 1989' 'Whether a caveat based on clause 28 can be validly extended']

Ratio Decidendi

Clause 28 of the contract creates a charge at the moment of contract, rather than only upon judgment, thus falling foul of s 7D of the Home Building Act 1989 and failing to support an extension of the caveat.

Court Disposition

Application to extend caveat dismissed with costs.

Orders

  • ['Application to extend caveat dismissed.' "Plaintiff to pay defendants' costs."]