Daftar v Al-Khamisy - [2013] NSWSC 34

Supreme Court

New South Wales

Medium Neutral Citation: Daftar v Al-Khamisy [2013] NSWSC 34
Hearing dates: 23/01/2013
Decision date: 23 January 2013
Jurisdiction: Equity Division
Before: McDougall J
Decision:
Application, for extension of caveat or freezing order, dismissed.

Catchwords: PRACTICE AND PROCEDURE - judgments and orders - freezing order - whether arguable case - REAL PROPERTY - caveats - application for extension - whether equitable invest identified
Legislation Cited: Real Property Act 1900 (NSW)
Cases Cited: Muschinski v Dodds (1985) 160 CLR 583
Category: Procedural and other rulings
Parties: Khalid Daftar (Plaintiff)
Kiraas Sabah Ati Al-Khamisy (Defendant)
Representation: Counsel:
FFF Salama (Plaintiff)
JAN Hogan-Doran (Defendant)
Solicitors:
Stojanovic Solicitors (Plaintiff)
Consolidated Lawyers Pty Ltd (Defendant)

File Number(s): 2013/16730

Judgment (EX TEMPORE REVISED - 23 jANUARY 2013)

HIS HONOUR: The plaintiff filed a summons seeking an order extending the operation of a caveat lodged by him against the title to land owned by the defendant. On the return of the summons today, the plaintiff amended to seek, in the alternative, an order restraining the defendant from selling, further encumbering or otherwise dealing with the property in question.

The caveat states the estate or interest claimed as:

"... an equitable interest in the land as beneficiary of a constructive trust."

That interest is said to arise from:

"... the fact that the caveator provided a sum of $170,000 for the acquisition of the land."

The plaintiff's evidence, which is essentially non-contentious, is that on 31 January 2011 he lent the defendant $120,000, which the defendant said he needed to help buy a house. The defendant agreed to repay the money in eights months' time.

Further, according to the plaintiff, he had a further conversation with the defendant in late May 2011. The defendant said he needed some more money for the house: $50,000. The plaintiff agreed to lend that sum. The defendant asked for it to be paid by bank cheque in the name of the vendor, a company known as MS Paul Pty Ltd.

The plaintiff procured and gave to the defendant a bank cheque thus

drawn.

Stepping aside from the loans for a moment, it is proved that the vendor of the property in question to the plaintiff was indeed a company known as MS Paul Pty Ltd.

On those facts, the plaintiff asserts that he has an equitable interest in the land. However, there is no evidence that the purchase was made as a result of some joint enterprise, or on the basis of an agreement or understanding that the plaintiff would obtain, in exchange for the payments, some interest in the land.

For the purposes of this application, I am prepared to accept that each of the advances was made to enable the defendant to buy the land in question. That is I think reasonably plain in the case of the second instalment - the bank cheque made out in the name of the vendor. And on the plaintiff's evidence, which for present purposes I accept, it is equally…

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.

Continue reading Daftar v Al-Khamisy

Details

AGLC: Daftar v Al-Khamisy [2013] NSWSC 34
Case: [2013] NSWSC 34
Decision Date: 23 January 2013

CaseChat Overview and Summary

The case of Daftar v Al-Khamisy before the Federal Court of Australia involved a dispute over a freezing order and the extension of a caveat. The applicant, Mr. Daftar, sought to freeze assets and extend a caveat over a property held by Mr. Al-Khamisy. The primary issues before the court were whether there was an arguable case for the freezing order and whether Mr. Daftar had identified an equitable interest in the property sufficient to warrant the extension of the caveat.

The court examined whether the applicant had established an arguable case for the relief sought. In the context of freezing orders, the court held that an arguable case required more than mere suspicion or conjecture; it needed a substantial possibility that the applicant would succeed if the case went to trial. The court also considered whether Mr. Daftar had identified an equitable interest in the property. This involved assessing the nature and extent of the interest claimed and whether it was sufficient to justify the extension of the caveat. The court determined that the applicant had not sufficiently demonstrated an arguable case for the freezing order or the extension of the caveat.

The court found that Mr. Daftar had not made out an arguable case for the freezing order, as the evidence provided was insufficient to establish a substantial possibility of success at trial. Furthermore, the court held that Mr. Daftar had not identified an equitable interest in the property that warranted the extension of the caveat. Consequently, the application for the freezing order was dismissed, and the application for the extension of the caveat was refused.

Orders