Cominos v Cominos
[2013] NSWSC 27
•22 January 2013
Supreme Court
New South Wales
Medium Neutral Citation: Cominos v Cominos [2013] NSWSC 27 Hearing dates: 22/01/2013 Decision date: 22 January 2013 Jurisdiction: Equity Division Before: McDougall J Decision: Defendant to withdraw caveat forthwith.
Catchwords: REAL PROPERTY - caveats - removal of caveat - PRACTICE AND PROCEDURE - costs - lump sum costs order. Category: Procedural and other rulings Parties: Dion Cominos (Plaintiff)
Gerasimos Dionisos Cominos (Defendant)Representation: Solicitors:
Dion Cominos (Plaintiff) (In person)
File Number(s): 2013/15577
Judgment (EX TEMPORE - REVISED 22 JANUARY 2013)
HIS HONOUR: The plaintiff is the proprietor of land at Newcastle. The defendant, the plaintiff's father, has lodged a caveat against the title to that land. The interest claimed by the caveat is "an equitable mortgage".
The facts said to give rise to that interest are:
"The caveator is the father of the current registered proprietor of the land. Between approximately June 2011 and September 2012 the caveator loaned the current registered proprietor $95,000 for the purpose of developing the improvements on the land."
The plaintiff seeks an order that the caveat be removed. The matter is of some urgency because the land in question is to be sold, and the proceeds of sale are to be used, among other things, to enable the plaintiff to settle amounts owing by him to a bank. That settlement is documented in a letter of 30 August 2012, which I have marked exhibit PX3.
I am satisfied from the plaintiff's affidavit of service filed in court today that the defendant has been served. The defendant has been called outside court. There is no appearance.
It is clear that the caveat must be removed. The interest claimed is undoubtedly capable of sustaining a caveat. However, the facts that are stated as giving rise to that interest do not demonstrate how the equitable mortgage arose. It is by no means clear or obvious that advances for the purpose of development would create any equitable or other interest in the land, let alone an equitable mortgage. That is so whether or not one takes into account the family relationship between the plaintiff and the defendant.
Reinforcing that is the circumstance that the only agreement in evidence is one which, on its face, was made on 9 September 2011. That agreement was made between the present parties. By that agreement, the plaintiff acknowledged that he was indebted to the defendant at the date of the agreement in the sum of $80,000. The agreement provided for that sum (or the balance outstanding) to be repaid only after the sale of the land in question. Further, it contained an "entire agreement" clause.
It is, I think, clear that the agreement is one to fix, or more accurately to postpone, the date of payment. The event on which payment is to occur is (completion of) the sale of the land in question. The agreement does not provide that repayment is to occur on settlement, or out of the proceeds of settlement, although it may be open to infer that the parties expected that the debt would be discharged from the proceeds of settlement. Nonetheless, the agreement does not create any interest either in the land or in the proceeds. It does not charge the land or the proceeds with repayment of the acknowledged debt.
In those circumstances, it seems to me, the agreement that has been proved (and I repeat that the defendant, although served, has not appeared) does not sustain the caveat.
It follows, in my view, that the plaintiff is entitled to the relief that he seeks.
The plaintiff also seeks to recover amounts incurred or foregone by him in respect of these proceedings. They include a filing fee and other court and Registrar General's fees, as well as costs of parking, travel, and the like; and work said to have been foregone.
I am satisfied that it is appropriate to make some sort of order but I am not satisfied that the total amount claimed is appropriate. I propose to exercise the power to fixes a lump sum and to fix that in the amount of $1,500, inclusive of court costs.
I make the following orders:
(1) Order that the defendant or some person authorised by him withdraw forthwith caveat AH456830J lodged by him against the land comprised in folio identifiers 91/1174078 and 92/1174078.
(2) Order the defendant to pay the plaintiff's costs and expenses of these proceedings.
(3) Fix those costs and expenses in the lump sum of $1,500.
(4) Direct that these orders be entered forthwith.
The exhibits will remain with the file.
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Decision last updated: 01 February 2013
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