Ageist Pty Ltd v Lilly (Lila) Stojcevski - [2021] NSWSC 1105

Supreme Court

New South Wales

Medium Neutral Citation: Ageist Pty Ltd v Lilly (Lila) Stojcevski [2021] NSWSC 1105
Hearing dates: 23 August 2021
Date of orders: 23 August 2021
Decision date: 23 August 2021
Jurisdiction: Equity
Before: Rein J
Decision:
See [16], [18] and [19]

Catchwords:
LAND LAW — Caveats — Removal of caveat – Application to remove caveat over property under a contract of sale entered into on 11 December 2020, settlement having been delayed since February 2021 - several prior caveats lodged and claims made by the Defendants and related parties on and in respect of the property — the Court, on prior occasions, ordered that all caveats lodged by the Defendants (and other related parties, including the Defendants’ mother) be removed — Plaintiff contends there is no serious question to be tried and no injunction would be granted to the caveators to preclude the sale and that the balance of convenience favours the removal of the caveat – where the property is subject to two registered mortgages and the debt under the second mortgage will not come close to being satisfied by sale of the property, and where the Defendants claim an equitable interest – whether there is a lack of utility — Held: there is no utility in the caveat because there could be no balance over which the Defendants can make a claim, the caveat is not bona fide, and the balance of convenience strongly favours the progress of the sale.

Legislation Cited:
Real Property Act 1900 (NSW)

Cases Cited:
Hanson Construction Materials Pty Ltd v Roberts [2016] NSWCA 240
Bayblu Holdings Pty Ltd v Capital Finance Australia Limited [2011] NSWCA 39
Ageist Pty Ltd v Samuel M Holdings Pty Ltd (Receiver and Manager Appointed) [2021] NSWSC 988
Lew v Bluescope Distribution Pty Ltd [2010] NSWSC 794
Dunecar Pty Ltd (in liq) v Colbron [2001] NSWSC 1181

Category: Principal judgment
Parties: Ageist Pty Ltd (Plaintiff)
Lilly (Lila) Stojcevski (First Defendant)
Lupco Stojcevski (Second Defendant)
Representation:
AG Martin of Counsel (Plaintiff)
D Carbone (solicitor) (Defendants)
Solicitors:
Summer Lawyers (Plaintiff)
Sydney Law Practice (Defendants)

File Number(s): 2021/00223654
Publication restriction: Nil

Ex tempore Judgment

In these proceedings the Plaintiff seeks the removal of caveat AR295470, which I shall refer to as the “Current Caveat”, lodged by the Defendants in respect of a property at 15 O'Donnell Street Port Kembla, which I shall refer to as “the Property”. The caveat asserts a beneficial interest in the trust and refers to "A Beneficial interest in Trust", and asserts:

“Constructive trust for caveators in a share proportionate to the caveators’ contribution to the acquisition of the land pursuant to a joint endeavour between the registered proprietor and the caveators. The caveators made financial contributions totaling $510,000 to the acquisition of the land.”

There are two registered mortgages on the property; one in favour of The Trust Company (PTAL) Ltd (“PTAL”) which secures a debt of approximately $386K and the second, which is now held by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWSC 1105
Decision Date: 23 August 2021

CaseChat Overview and Summary

Agist Pty Ltd sought to remove a caveat over a property from Lilly (Lila) Stojcevski, which had been lodged in relation to a contract of sale entered into on 11 December 2020. The settlement date had been delayed since February 2021. There were several prior caveats lodged and claims made by the Defendants and related parties on and in respect of the property. The Court had previously ordered that all caveats lodged by the Defendants (and other related parties, including the Defendants’ mother) be removed. The Plaintiff argued there was no serious question to be tried and no injunction would be granted to the caveators to preclude the sale, and that the balance of convenience favoured the removal of the caveat. The property was subject to two registered mortgages, and the debt under the second mortgage would not be satisfied by sale of the property. The Defendants claimed an equitable interest.

The legal issues before the court were whether there was a lack of utility in the caveat, whether the caveat was bona fide, and whether the balance of convenience favoured the removal of the caveat. The Court held that there was no utility in the caveat because there could be no balance over which the Defendants could make a claim, and that the caveat was not bona fide. The Court further found that the balance of convenience strongly favoured the progress of the sale.

The Court dismissed the caveat and ordered that it be removed from the register. The Court held that the caveat had no utility as there was no balance over which the Defendants could make a claim, and that the caveat was not bona fide. The Court further found that the balance of convenience strongly favoured the progress of the sale. The Court ordered that the caveat be removed from the register and that the Plaintiff be paid its costs of the application.

Orders