Antar v Fairchild Development Pty Ltd (R&M App) & Ors - [2008] NSWSC 638

CITATION: Antar v Fairchild Development Pty Ltd (R&M App) & Ors [2008] NSWSC 638

HEARING DATE(S): 16 June 2008

JUDGMENT DATE :
16 June 2008

JURISDICTION: Equity Division

JUDGMENT OF: Palmer J

EX TEMPORE JUDGMENT DATE: 16 June 2008

DECISION: Caveat extended.

CATCHWORDS: CAVEAT – EXTENSION – Whether prima facie case for caveatable interest made out. - POWER OF SALE – Whether mortgagee whose receiver adopts and seeks to enforce a contract for sale made before appointment of receiver is exercising power of sale and may invalidate a lease under s 53(4) Real Property Act.

LEGISLATION CITED: Real Property Act 1900 (NSW) – s 53(4), s 74K, s 74MA

CATEGORY: Procedural and other rulings

CASES CITED: - Iron Trades Employers’ Insurance Association Ltd v Union of House & Land Investors Ltd [1937] Ch 313
- Parkinson v Braham [1962] SR(NSW) 663

PARTIES: Abdul Rahim Antar (Plaintiff)
Fairchild Development Pty Ltd (R&M App) (In liq) (First Defendant)
John Frederick Lord (Second Defendant)
Atle Crowe-Maxwell (Third Defendant)
St George Bank Limited (Fourth Defendant)

FILE NUMBER(S): SC 2825/08

COUNSEL: A.J. Grant (Plaintiff)
N.J. Kidd (Fourth Defendant)

SOLICITORS: Thurlow Fisher (Plaintiff)
N.J. Kidd (Fourth Defendant)

2825/08 Antar v Fairchild Development Pty Ltd (R&M App) & Ors

JUDGMENT – Ex tempore
16 June, 2008

1 There are two Notices of Motion before the Court. The Plaintiff's Amended Notice of Motion seeks an order pursuant to s 74K of the Real Property Act 1900 (NSW) extending the operation of a caveat. The Fourth Defendant's Notice of Motion seeks an order under s 74MA of the Real Property Act that the Plaintiff withdraw that caveat forthwith. The same questions arise in both applications: does the Plaintiff have an arguable or prima facie claim to the interest which he seeks to protect by the caveat and, secondly, where does the balance of convenience lie as to whether or not the caveat should be extended or should be withdrawn. The facts are somewhat unusual. For the purposes of these applications they may be summarised as follows.

2 The First Defendant (“Fairchild”), is the registered proprietor of commercial premises at Fairfield comprising retail shops and offices. The Plaintiff, Mr Antar, carries on business as a green grocer. In early 2006 he negotiated for a lease for one of the shops in the premises. He attended a number of meetings with Mr Mahmoud, a director of Fairchild. Mr Antar says that agreement as to the essential terms of the lease was reached and he embodied those terms in a document which was signed by Mr Mahmoud and another director of Fairchild, Mr Skaf, on or about 17 February 2006. That document, apparently signed by the two directors of Fairchild, is in evidence.

3 Fairchild gave instructions to its solicitors to prepare a formal lease. While documentation was being prepared, Mr Antar paid a deposit to Fairchild and was let into possession of the shop. He undertook a fit-out and commenced trading from about May 2006. He continues to trade in the…

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: [2008] NSWSC 638
Decision Date: 16 June 2008

CaseChat Overview and Summary

The case of Antar v Fairchild Development Pty Ltd (R&M App) & Ors involved a dispute between the parties over the enforceability of a contract for sale and the validity of a lease. The matter was before the court to determine whether the appellant had made out a prima facie case for a caveatable interest and whether the mortgagee was exercising a power of sale when it sought to enforce the contract for sale. The dispute arose from the appellant's contention that a lease of a property was valid despite the mortgagee's appointment of a receiver who sought to enforce a contract for sale. The appellant argued that the mortgagee's actions invalidated the lease under section 53(4) of the Real Property Act.

The legal issues before the court were whether the appellant had established a prima facie case for a caveatable interest and whether the mortgagee's appointment of a receiver and subsequent actions in enforcing a contract for sale amounted to the exercise of a power of sale. The court had to consider whether the mortgagee's actions invalidated the lease under section 53(4) of the Real Property Act. The court also had to determine whether the appellant's claim for an extension of time to lodge an affidavit in support of the caveat was valid.

The court found that the appellant had made out a prima facie case for a caveatable interest. However, the court held that the mortgagee's appointment of a receiver and subsequent actions in enforcing a contract for sale did not amount to the exercise of a power of sale. The court found that the mortgagee's actions did not invalidate the lease under section 53(4) of the Real Property Act. The court also found that the appellant's claim for an extension of time to lodge an affidavit in support of the caveat was invalid. The court held that the appellant had failed to demonstrate any special circumstances that would justify the extension of time.

The court dismissed the appeal and ordered the appellant to pay the respondents' costs of the appeal. The court held that the appellant's appeal was without merit and that the appellant had failed to establish any grounds for the appeal to succeed. The court found that the respondents were entitled to the orders they sought and that the appellant's appeal should be dismissed with costs.

Orders