Szanto v Bainton & Ors [2011] NSWSC 278

Szanto v Bainton & Ors [2011] NSWSC 278

The plaintiff did not establish a serious question to be tried that the defendants were not entitled to terminate the contract: the alleged unauthorised sewer connection or blockage was not shown to be a defect in title, no Sydney Water notice had been given, and the special conditions precluded objections concerning the sewerage diagram, sewer location or omitted easements. In any event, the balance of convenience did not favour maintaining a caveat that prevented refinancing, and the plaintiff's unsecured undertaking as to damages was of doubtful value.

Jurisdiction
Australia
Judgment Date
12 April 2011
Procedural Posture
Application to Extend Caveat / Interlocutory Application
Outcome
Order extending the operation of caveat AF470369V discharged; application to maintain the caveat refused in effect; plaintiff ordered to pay defendants' costs of the application.
Legal Topics
['extension of Caveat' 'contract for Sale of Land' 'termination of Contract' 'defect in Title' 'sewer Connection' 'easement' 'balance of Convenience' 'undertaking as to Damages']
['real Property' 'conveyancing' 'equity'] ['extension of Caveat' 'contract for Sale of Land' 'termination of Contract' 'defect in Title' 'sewer Connection' 'easement' 'balance of Convenience' 'undertaking as to Damages']

Case Brief

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Procedural Posture

Application to Extend Caveat / Interlocutory Application

Legal Issues

  1. 1 ['Whether there was a serious question to be tried that the plaintiff had an interest supporting the caveat.' 'Whether the defendants were entitled to terminate the contract for sale after service of a notice to complete.' 'Whether an illegal sewer connection, flooding issue, or omitted easement constituted a defect in title preventing completion.' 'Whether special conditions in the contract precluded the plaintiff from objecting to the sewer or drainage issues.' "Whether the balance of convenience and the adequacy of the plaintiff's undertaking as to damages favoured maintaining the caveat."]

Ratio Decidendi

The plaintiff did not establish a serious question to be tried that the defendants were not entitled to terminate the contract: the alleged unauthorised sewer connection or blockage was not shown to be a defect in title, no Sydney Water notice had been given, and the special conditions precluded objections concerning the sewerage diagram, sewer location or omitted easements. In any event, the balance of convenience did not favour maintaining a caveat that prevented refinancing, and the plaintiff's unsecured undertaking as to damages was of doubtful value.

Court Disposition

Order extending the operation of caveat AF470369V discharged; application to maintain the caveat refused in effect; plaintiff ordered to pay defendants' costs of the application.

Orders

  • ['Order that the order made on 2 March 2011 extending the operation of caveat AF470369V be discharged. This order may be entered forthwith.' 'Direct that the plaintiff file and serve a further amended statement of claim by 29 April 2011, and that the defendants file and serve a defence to that statement of claim by...