Becker v Gurr

Judgment

1. These proceedings were commenced by Summons filed on 21 September 2018. The proceedings arise out of a terms contract for the sale of a property in East Branxton, entered into between the plaintiff as purchaser and the defendants as vendor in February 2014, and a Deed of Mutual Rescission of Contract dated 30 June 2018. The Deed, which appears to have been made on about 4 July 2018, provided in cl 2 for the terms contract to be rescinded and treated as void ab initio as at 30 June 2018. Clause 3 of the Deed provided: (a) The vendors shall repay to the purchasers the sum of $23,000 from the monies received from the purchasers in respect of the property. (b) The vendors grant to the purchaser caveatable interest on the property to secure the payment referred to in subparagraph (a) above. (c) The payment in subparagraph (a) above will be effected upon sale of the property or within three (3) months of the date of this deed (whichever is earlier).
2. As envisaged by cl 3 of the Deed, on about 4 July 2018 the plaintiff lodged a caveat against the title to the East Branxton property. The interest claimed in the caveat was an estate in fee simple, by virtue of an agreement dated 30 June 2018 between the plaintiff and the defendants. It was further stated in the caveat that the interest was "an equitable interest as the purchaser under a Deed of Rescission of contract for refund of deposit of $23,000". A lapsing notice in respect of the caveat was served on 4 September 2018.
3. By her Summons the plaintiff sought interlocutory relief, including an order under s 74K of the Real Property Act 1900 (NSW) extending the operation of the caveat, and final relief including declarations that the terms contract had been terminated by the Deed, and that the defendants were obliged under the Deed to pay $23,000 to the plaintiff.
4. The plaintiff obtained ex parte orders for short service on 24 September 2018, and the matter came back before the Court on 25 September 2018. On that occasion, no order was made for the extension of the operation of the caveat in circumstances where the defendants gave an undertaking to the Court "that the sum of $23,000 paid yesterday to their solicitors MRM Lawyers be retained in the trust account of MRM Lawyers pending further order, or agreement between the parties". It was noted that the payment by the defendants to their solicitors, and the undertaking proffered, was done on a without admissions basis. It was further noted that a contract for the sale of the property by the defendants to a third party was provisionally fixed for settlement on either 9 or 10 October 2018. The proceedings were adjourned to 26 October 2018.