Complex Scaffolding Solutions Pty Ltd v Abraham Doueihi (No 2) - [2014] NSWSC 626

Supreme Court

New South Wales

Medium Neutral Citation: Complex Scaffolding Solutions Pty Ltd v Abraham Doueihi (No 2) [2014] NSWSC 626
Hearing dates: 18 February 2014, 11 April 2014 and 15 May 2014
Decision date: 21 May 2014
Jurisdiction: Equity
Before: Robb J
Decision:
The court will make the following orders subject to the first defendant responding affirmatively to the direction in par (7)

(1)   Order the plaintiff to withdraw caveat No AI223177M within 14 days.

(2)   Leave to the plaintiff to lodge a caveat in the form annexed and marked A to the affidavit of Mr Hidayat made 2 May 2014 against the first defendant’s interest in each of the three properties listed in par 1 of the plaintiff’s notice of motion filed on 4 February 2014 (“the properties”).

(3)   Order the plaintiff to withdraw the caveat from lodgement against the first defendant’s interest in

(a)   the title to the property listed in par 1(a) of the plaintiff’s notice of motion if the first defendant gives the plaintiff evidence that the first defendant has entered into a contract to sell that property; and

(b)   the title to the property listed in par 1(c) of the plaintiff’s notice of motion if the first defendant gives the plaintiff evidence that the first defendant has negotiated a loan to fund the purchase of properties adjoining that property that will require a mortgage to be given over that property

in each case within 14 days of
receipt of the evidence.

(4)   Order that the first defendant be restrained until further order from granting any further security over the property listed in par 1(b) of the plaintiff’s notice of motion, or increasing the amount borrowed upon the security of that property.

(5)   Grants leave to the parties to apply to the court on three days’ notice if further relief is necessary for the enforcement of these orders.

(6)   Order the plaintiff to pay the first defendant’s costs in relation to the plaintiff’s notice of motion filed on 4 February 2014 as agreed or assessed up to 12 March 2014. Thereafter, the costs of the motion filed on 4 February 2014 are costs in the cause.
(7)   Direct the first defendant to notify the associate to Robb J within seven days of the publication of these reasons for judgment whether or not he will accept the making of order (4).
Catchwords: REAL PROPERTY – Caveats – existing caveat invalid – whether leave should be granted to lodge a new caveat – balance of convenience – whether leave should be limited to one of three properties – appraisal evidence admitted without objection of value of properties – reliance on that evidence
Legislation Cited: Corporations Act 2001 (Cth) s 601AB
Duties Act 1997 (NSW) ss 304(2), 211
Real Property Act 1900 (NSW) ss 74O, 74LA(2)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Amautovic & Sutherland v Cvitanovic [2011] FCA 809
Andrews v Wilcox [2008] NSWSC 280
Category: Procedural and other rulings
Parties: Complex Scaffolding Solutions Pty…

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: [2014] NSWSC 626
Decision Date: 21 May 2014

CaseChat Overview and Summary

The matter before the court was an application by Complex Scaffolding Solutions Pty Ltd seeking leave to lodge a new caveat over certain properties owned by Abraham Doueihi. The existing caveats over the properties had been declared invalid by the court in a previous proceeding. The applicants sought leave to lodge new caveats to protect their interest in the properties. The court was required to determine whether leave should be granted, and if so, whether it should be limited to one of the three properties in question.

The central legal issue was whether the applicants had demonstrated a sufficient balance of convenience to warrant the grant of leave to lodge new caveats. The court considered the evidence presented by the parties, including appraisal evidence of the value of the properties. The applicants argued that they had a significant interest in the properties, which warranted the protection of a new caveat. The respondents contended that the applicants had not demonstrated a sufficient balance of convenience and that the grant of leave should be limited to one of the properties. The court had to weigh the competing interests of the parties and determine whether the applicants had demonstrated a sufficient balance of convenience.

The court found that the applicants had demonstrated a sufficient balance of convenience to warrant the grant of leave to lodge new caveats over all three properties. The court noted that the applicants had a significant interest in the properties and that the grant of leave was necessary to protect that interest. The court also found that the respondents had not demonstrated any significant prejudice that would outweigh the applicants' interest. The court determined that the grant of leave should not be limited to one of the properties, as the applicants had demonstrated a sufficient balance of convenience for all three properties. The court relied on the appraisal evidence of the value of the properties, which had been admitted without objection by the parties.

The court granted leave to the applicants to lodge new caveats over all three properties. The court found that the applicants had demonstrated a sufficient balance of convenience to warrant the grant of leave, and that the grant of leave should not be limited to one of the properties. The court noted that the respondents had not demonstrated any significant prejudice that would outweigh the applicants' interest. The court ordered that the applicants be granted leave to lodge new caveats over all three properties, and that the respondents bear their own costs of the application.

Orders