Coca-Cola Amatil (Aust) Pty Ltd v Jamal Gebara

[2013] NSWSC 2048

Supreme Court

New South Wales

Medium Neutral Citation:

Coca-Cola Amatil (Aust) Pty Ltd v Jamal Gebara [2013] NSWSC 2048

Hearing dates:

31 December 2013

Decision date:

31 December 2013

Before:

Rothman J

Decision:

1. The operation of Caveat No. AH259593 be extended until further order of the Court;

2. Costs reserved;

3. The matter be relisted before the Registrar in Equity on 4 February 2014;

4. Leave to the plaintiff to have these orders entered forthwith;

And the Court notes that:

5. The plaintiff has provided the usual undertaking as to damages.

Category:

Interlocutory applications

Parties:

Coca-Cola Amatil (Aust) Pty Limited (Plaintiff)
Jamal Gebara (Defendant)

Representation:

Counsel:
C. Locke (Plaintiff)
J. Tipple (Defendant)
Solicitors:

File Number(s):

2013/381058

Publication restriction:

None

EX TEMPORE Judgment

1. HIS HONOUR: Before the Court is an application by summons for a declaration that the plaintiff holds an equitable charge in property that is a caveatable interest or an interest that may be subject to caveat. At the moment, the Court is dealing only with interlocutory issues, and before the Court there are consent orders to extend the caveat currently in place on the aforesaid property until further order of the Court, that is, until such time as the matter can be the subject of final hearing.

1. The plaintiff, and applicant on the motion, relies upon the affidavit of Philip Waddups of 18 December 2013. I have read that affidavit and the annexures to it. The plaintiff also relies upon exhibit A in the proceedings, being a stamped copy of the guarantee and indemnity, which secured a loan in relation to the franchise arrangements between the plaintiff and the defendant or the defendant's company.

1. Paragraph 6 of the guarantee terms and conditions in exhibit A is in, relevantly, the following terms:

"The guarantor hereby charges all legal and beneficial interest in any land and personal property held now or in the future by the guarantor with the payment of that indebtedness, and the guarantor consents unconditionally to the supplier lodging a caveat or caveats, noting its interest in any Real Property."

1. It is on the basis of that clause that the plaintiff asserts caveatable interest in the property in question.

1. I am dealing only with the interlocutory issues. In my view, plainly there is an arguable case that the plaintiff has a caveatable interest that would allow the continuation, on an interlocutory basis, of the caveat that is in place. Given that I expect that the matter would be dealt with expeditiously and given that the interlocutory orders are the subject of consent, it seems to me the balance of convenience plainly favours the continuation of the caveat for the interim period and I therefore make the orders in the consent orders handed to me, initialled and dated today's date. Those orders may be entered forthwith.

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Decision last updated: 04 September 2014