• 13 Feb 2017

Decision Alert: Get off my Title! - Orders for the Withdrawal of Caveats and the Court's Equitable Jurisdiction: Kondylis v Bacic[2017] NSWSC 66

In a brief judgment handed down by his Honour, Justice White in Kondylis v Bacic[2017] NSWSC 66, the Supreme Court has reinforced two basic, but crucial, factors to be considered when dealing with an application for Orders for the withdrawal of a caveat.

The matter concerned an alleged agreement between a builder (Mr Bacic) and home owner (Ms Kondylis) for the payment of outstanding building fees upon the sale of the property in Arncliffe, NSW. Mr Bacic alleged that Ms Kondylis agreed to pay him his outstanding fees from the proceeds of the sale. To protect his interest, he lodged, and obtained registration of, a caveat upon the title of the property to secure that alleged entitlement.

Ms Kondylis sought an order under section 74AM of the Real Property Act 1900 (NSW) for the caveat to be removed. Ultimately, for the reasons given by his Honour, Ms Kondylis was successful in that endeavour.

In the Judgment of White J, the disposition of the matter turned on two basic precepts. Firstly, a caveat can be maintained upon the title of a property only if it secures a legal or equitable interest in the land. In the instance before the Court, the entitlement secured only a claim for “interest in the proceeds of sale”. This was insufficient.

Importantly, however, the Court went on to consider the equitable maxim “he who seeks equity, should do equity” sometimes expressed as “he who comes to equity must do so with clean hands”.In this case, Ms Kondylis was seeking an order in the Court’s equitable jurisdiction and so, his Honour reasoned, must also do equity in response. As a consequence the Court ordered that the sum of $50,000 be deposited into a special account pending the resolution of the dispute.

Avoiding the pitfalls of litigation can be tricky. Considerations of how best to approach the Court, what Orders to seek and what the Court is likely to expect from the application demand careful, experienced attention.