De Meyrick v Dimitriou - [2011] NSWSC 1291

Supreme Court

New South Wales

Medium Neutral Citation: De Meyrick v Dimitriou [2011] NSWSC 1291
Hearing dates: Tuesday, 18 October 2011
Decision date: 18 October 2011
Jurisdiction: Equity Division
Before: Brereton J
Decision:
Leave to lodge a further caveat granted.

Catchwords: REAL PROPERTY - Caveat - Caveator seeks leave under (NSW) Real Property Act s 74O to lodge further caveat - whether caveat has or may have substance - caveator claims interest in land as unregistered mortgagee - mortgage secures moneys due in respect of proposed legal proceedings - caveator has prima facie interest in caveatee's land - balance of convenience - comparison of potential harm to caveator if order incorrectly not made and to caveatee if order made incorrectly - no prejudice to caveatee identified - necessity to consider circumstances in which caveat lapsed in applications under s 74O - such circumstances overlap with analysis of balance of convenience lies - caveator claims not to have been notified caveat had lapsed - no suggestion caveatee took action in reliance on caveat lapsing - leave to lodge fresh caveat granted.
Legislation Cited: (NSW) Legal Profession Act, 2004
(NSW) Legal Profession Regulations, 2005
(NSW) Real Property Act, 1900, s 12A, s 74K, s 74MA, s 74O
Cases Cited: Fitzgibbons v Shaftsbury [2011] NSWSC 525
Warner v Andrews [2011] NSWSC 956
Category: Principal judgment
Parties: John Julian De Meyrick (plaintiff)
Georgina Dimitriou (defendant)
Representation: Counsel:
Mr M Sneddon with Mr D Currie (plaintiff)
Mr J Dupree (defendant)
Solicitors:
Robinson Lawyers (plaintiff)
Corporate Network Legal Solicitors (defendant)

File Number(s): 2011/270112

JUDGMENT (ex tempore)

HIS HONOUR: On 17 July 2007 the plaintiff John Julian De Meyrick, a barrister, issued a disclosure statement to Georgina Dimitriou, a client, in respect of the fees to be charged by him and in compliance with (NSW) Legal Profession Act, 2004 and (NSW) Legal Profession Regulations, 2005, in respect of proposed proceedings in the Industrial Relations Commission of New South Wales. Between 5 February 2008 and 6 June 2011, Mr De Meyrick issued to Ms Dimitriou tax invoices which, inclusive of GST, were as follows: 5 February 2008, $10,703; 20 June 2008, $7,062; 30 September 2008, $9,542.50; 23 October 2009, $3,954.50; 26 October 2009, $4,851; 27 October 2009, $9,399.50; 28 October 2009, $8,657; 29 October 2009, $6,798; 30 October 2009, $4,570.50; 10 December 2009, $10,521.50; 28 January 2010, $9,300.50; 18 May 2010, $4,587; 20 May 2010, $3,349.50; 6 September 2010, $10,642.50; 2 June 2011, $4,823.50 and 6 June 2011, $1,375. These amounts total $110,138.

On 8 March 2009 - which it will be noted was after the first three of those invoices but before all the others - Ms Dimitriou executed in favour of Mr De Meyrick a mortgage over land comprised in folio identifiers 12/217546 and 13/SP36131, covenanting that the provisions set out in the annexure and in filed memorandum Q860000, were incorporated in the mortgage. The annexure was as follows:

That the moneys secured by this mortgage are all moneys now or at any time hereafter owing…

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 De Meyrick v Dimitriou

Details

AGLC: De Meyrick v Dimitriou [2011] NSWSC 1291
Case: [2011] NSWSC 1291
Decision Date: 18 October 2011

CaseChat Overview and Summary

De Meyrick v Dimitriou involved a dispute over the right to lodge a further caveat over certain land. The case was heard in the Supreme Court of New South Wales. The primary issue before the court was whether the caveator was entitled to leave to lodge a further caveat under section 74O of the Real Property Act 1900 (NSW). The caveator, De Meyrick, claimed an interest in the land as an unregistered mortgagee, which secured moneys due in respect of proposed legal proceedings against the caveatee, Dimitriou. The court needed to determine whether the caveator had a prima facie interest in the land and assess the balance of convenience in deciding whether to grant the leave.

The court examined the criteria set out in section 74O, focusing particularly on whether the caveator had a prima facie interest in the land and the balance of convenience. The court found that the caveator did indeed have a prima facie interest as an unregistered mortgagee, which was sufficient to warrant consideration of leave under section 74O. The court also noted that no prejudice to the caveatee was identified if the leave was granted. The balance of convenience was deemed in favour of the caveator, as there was no significant harm to the caveatee if the leave was granted, whereas the caveator would suffer considerable harm if the leave was not granted. Additionally, the circumstances in which the caveat had lapsed were considered relevant and overlapped with the balance of convenience analysis. The caveator's claim of not being notified that the caveat had lapsed further supported the grant of leave.

The court concluded that the caveator was entitled to leave to lodge a fresh caveat. The circumstances, including the lack of action taken by the caveatee in reliance on the caveat lapsing, supported the grant of leave. Consequently, the court ordered that the caveator be granted leave to lodge a fresh caveat over the specified land.

Orders