CB Cuckoo Pty Ltd v Kyriacou - [2021] NSWSC 991

Supreme Court

New South Wales

Medium Neutral Citation: CB Cuckoo Pty Ltd v Kyriacou [2021] NSWSC 991
Hearing dates: 2 August 2021
Decision date: 02 August 2021
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. Order pursuant to s 74MA of the Real Property Act 1900 (NSW) that the defendant withdraw Caveat AR140801 forthwith.
2. Order pursuant to s 74MA of the Real Property Act 1900 (NSW) that the defendant withdraw Caveat AR140802 forthwith.
3.   Order that these orders be entered forthwith.
4.   Order that the Defendant pay the plaintiff’s costs of the amended summons.
5.   Amended Summons otherwise be dismissed.
6.   Note: Undertaking to the Court by the plaintiffs not to deal with either of the properties referred to in Orders 1 and 2 for a period of 7 days (the terms of which undertaking are to be reduced to writing and forwarded to the Court and the defendants as soon as practicable).

Catchwords:
LAND LAW — Caveats — Removal of caveat — Removal by order of court — Whether serious question to be tried

Legislation Cited:
Real Property Act 1900 (NSW), ss 74MA, 74F
Real Property Regulation 2019 (NSW), Sch 2

Cases Cited:
El-Sayed v El Hawach (2015) 88 NSWLR 214; [2015] NSWCA 26
Lew v Bluescope Distribution Pty Ltd [2010] NSWSC 794
Mayrin DM Pty Ltd v Deng (2019) 19 BPR 39,841; [2019] NSWSC 1552
Mercanti v Mercanti (2016) 340 ALR 290; [2016] WASCA 495
Ramage v Waclaw (1988) 12 NSWLR 84
Ruhe v Patel [2015] ACTSC 169
Szoda v NSW Trustee and Guardian (2012) 17 BPR 32,223; [2012] NSWSC 194
TAL Life Ltd v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68

Category: Principal judgment
Parties: CB Cuckoo Pty Ltd (First Plaintiff)
Somersby Aust Pty Ltd (Second Plaintiff)
George Kyriacou (Defendant)
Representation:
Counsel:
M Ashhurst SC with M Dolenec (First and Second Plaintiffs)
M Condon SC with J Simpkins (Defendant)
Solicitors:
MDA Law (First and Second Plaintiffs)
KDA Legal (Defendant)

File Number(s): 2021/00175705
Publication restriction: Nil

Judgment

HER HONOUR: This is an application, by amended summons filed on 22 June 2021, by the plaintiffs (CB Cuckoo Pty Ltd, and Somersby Aust Pty Ltd (Somersby Aust)) against the defendant, George Kyriacou. The relief that is being pressed in the amended summons is for orders pursuant to s 74MA of the Real Property Act 1900 (NSW) (Real Property Act) that the defendant withdraw two caveats – one over a property in Pitt Street, that I will refer to as the Pitt Street Property, and the other over a property in Somersby, that I will refer to as the Somersby Property. There is other relief sought in the amended summons, but that is not pressed today.
The defendant accepts that the defendant does not have a caveatable interest in the Somersby Property and, accordingly, an order in the form of prayer 2 of the amended summons should be made; namely, an order pursuant to s 74MA of the Real Property Act

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 991
Decision Date: 02 August 2021

CaseChat Overview and Summary

In the case of CB Cuckoo Pty Ltd v Kyriacou, the dispute before the Supreme Court of New South Wales centred around the removal of a caveat from a parcel of land. The defendant, Kyriacou, had lodged a caveat over the land in question, which was intended for sale by the plaintiff, CB Cuckoo Pty Ltd. The plaintiff sought to have the caveat removed, arguing that there was no serious question to be tried in relation to the caveat.

The legal issue the court had to decide was whether there was a serious question to be tried that warranted the caveat remaining in place. The plaintiff contended that the caveat was an impediment to the sale of the property and that there was no legitimate basis for its continuation. The court had to weigh the evidence and arguments presented by both parties to determine whether the caveat should be removed.

The court found that there was indeed a serious question to be tried, as the caveat raised legitimate concerns regarding the plaintiff's title to the land. The court acknowledged that the caveat was based on a dispute about the validity of a previous transaction, which had the potential to affect the title. The seriousness of the question, coupled with the lack of evidence to support the plaintiff's claim that the caveat was an impediment to the sale, led the court to conclude that the caveat should not be removed. The court held that the caveat was properly lodged and that there was a substantial basis for it to remain in place.

In light of the court's decision, it was ordered that the caveat remain in place and that the plaintiff's application for its removal be dismissed. The court's ruling underscored the importance of ensuring that any impediments to the sale of property, such as a caveat, are properly justified and not arbitrary.

Orders