Faeeh v Repaja; Repaja v Faeeh - [2014] NSWSC 1551

Supreme Court

New South Wales

Medium Neutral Citation: Faeeh v Repaja & Anor; Repaja v Faeeh [2014] NSWSC 1551
Hearing dates: 21 October 2014
Decision date: 21 October 2014
Jurisdiction: Equity Division - Duty List
Before: White J
Decision:
Refer to paras [23] and [27] of judgment.

Catchwords: REAL PROPERTY - Torrens title - caveats against dealings - application for withdrawal of caveat - plaintiff loaned defendants moneys for particular purposes on an unsecured basis - moneys not used for those purposes but to reduce pre-existing loan with other lender - facts did not demonstrate plaintiff caveator had any proprietary interest in properties - caveats ordered to be withdrawn;
PROCEDURE - judgments and orders - freezing orders - whether freezing orders made ex parte by District Court should be extended - freezing orders discharged
Cases Cited: Ross v Internet Wines Pty Ltd [2004] NSWCA 195; (2004) 60 NSWLR 436
Category: Interlocutory applications
Parties: Ali Faeeh (Plaintiff 14/269439/Defendant 14/296028)
Divna Repaja (1st Defendant 14/269439)
Milorad Repaja (2nd Defendant 14/269439/Plaintiff 14/296028)
Representation: Counsel:
D A Allen (Repaja)
J Taylor (Faeeh)
Solicitors:
Carlisle Attorneys (Faeeh)
Dib Lawyers (Repaja)

File Number(s): 2014/269439 2014/296028

Judgment

There is a number of applications in these proceedings. On 9 October 2014 the District Court made a freezing order against both defendants in the District Court proceedings, Mrs Divna Repaja and Mr Milorad Repaja. The freezing orders were made ex parte. They were expressed to be made until further order, save for one which in terms was a final order. There is an issue as to whether the freezing orders should be extended. Secondly, in connection with the freezing order application, there is an application for the defendants in the District Court proceedings to give disclosure of assets. Thirdly, Mr Repaja seeks orders for the withdrawal of two caveats lodged by the plaintiff in the District Court proceedings, Mr Faeeh. Fourthly, there is a notice of motion by Mr Faeeh seeking summary judgment against both defendants. That is not sought to be proceeded with today, but Mr Repaja seeks, by way of oral application, to strike out the statement of claim against him.

I will deal first with the issues in relation to the extension of the freezing orders.

Mr Faeeh's claim in the proceedings that were originally commenced in the District Court, but have since been transferred to this Court, is for judgment against Mr and Mrs Repaja for $750,000 for moneys lent. He contends that by an agreement or agreements made between him and the first defendant, Mrs Divna Repaja, he agreed to lend moneys to Mr and Mrs Repaja for particular purposes, namely the investment in a dental surgery practice, in an internet business, and in a hotel. The agreements are said to have been made by Mrs Repaja on behalf of both defendants. Mr Faeeh pleads that it is a term of the agreements, in effect, that the money would be repaid within a year of each advance. He pleads that the moneys…

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 Faeeh v Repaja; Repaja v Faeeh

Details

AGLC: Faeeh v Repaja; Repaja v Faeeh [2014] NSWSC 1551
Case: [2014] NSWSC 1551
Decision Date: 21 October 2014

CaseChat Overview and Summary

In the Supreme Court of Queensland, Faeeh sued Repaja to have caveats withdrawn from properties held by Repaja. Faeeh had loaned Repaja money for a specific purpose on an unsecured basis, but the funds were instead used to reduce an existing loan with another lender. The court was tasked with determining whether Faeeh had a sufficient proprietary interest to maintain the caveats on the properties. Additionally, the court had to decide whether ex parte freezing orders made by the District Court should be extended.

The court held that there was no evidence that Faeeh had any proprietary interest in the properties, as the loan was unsecured and the funds were not used for the intended purpose. The court found that the caveats were improperly entered and ordered them to be withdrawn. The court also considered the application to extend the freezing orders, noting that the ex parte nature of the orders was a significant factor. The court discharged the freezing orders, concluding that the circumstances did not justify their extension.

The final orders of the court included the withdrawal of the caveats entered by Faeeh on the properties and the discharge of the ex parte freezing orders made by the District Court.

Orders