Frontier Law Group Pty Ltd v Robert Glenn Barkman - [2016] NSWSC 1542

Supreme Court

New South Wales

Medium Neutral Citation: Frontier Law Group Pty Ltd v Robert Glenn Barkman [2016] NSWSC 1542
Hearing dates: 28 October 2016
Date of orders: 28 October 2016
Decision date: 28 October 2016
Jurisdiction: Equity
Before: Slattery J
Decision:
Court not satisfied that the caveator’s claim has or may have substance. Application dismissed.

Catchwords: REAL PROPERTY – urgent application for extension of caveat pursuant to Real Property Act, s 74K –whether the caveator’s claim has or may have substance to warrant the extension of caveat.
Legislation Cited: Legal Profession Act 2004 (NSW)
Legal Profession Uniform Law Application Act 2014 (NSW), s 167(a)
Legal Profession Uniform Law 2014 (NSW)
Real Property Act 1900 (NSW), s 74 K
Cases Cited: Dowdle v Inverell Shire Council (1999) 9 BPR 17,349
Queanbeyan Leagues Club Ltd v Poldune Pty Ltd (1996) 7 BPR 15,078
Wilson v Graham (1997) 10 BPR 19,051
Category: Procedural and other rulings
Parties: Plaintiff: Frontier Law Group Pty Ltd
Defendant: Robert Glenn Barkman
Representation:
Counsel
Solicitor
Plaintiffs: D. Guede, Frontier Law Group Pty Ltd
Defendants: in person

File Number(s): 2016/233709
Publication restriction: No

EX TEMPORE Judgment

The plaintiff in these proceedings, the Frontier Law Group Pty Limited, provided legal services to the defendant, Mr Robert Glenn Barkman in a period probably within the last two years. I say "probably", because the state of the evidence in this application does not permit the Court to establish exactly when legal services were provided, or exactly when any costs agreement between solicitor and client was made.
The plaintiff attended yesterday in the Equity Duty List seeking the extension of a caveat over certain real property owned by the defendant Mr Barkman (also referred to as “the client” in this judgment).
The plaintiff (also referred to in these reasons as “the solicitor”) approached the Court yesterday. A lapsing notice had been served upon the solicitor under Real Property Act 1900, s 74J. The caveat was due to expire at midnight tonight, 28 October 2016. The legal representative appearing for the solicitor, Mr Guede, contended that the matter was urgent. The Court granted leave for short service to bring the matter back at midday today.
Unless it makes an order dispensing with service, the Court cannot hear an application to extend the operation of a caveat under Real Property Act, s 74K. This provision commands the Court not to proceed with a hearing "Unless it is satisfied that all interested parties disclosed by the notice which gave rise to the application have been served with copies of the application before the hearing": Real Property Act, s 74K(3). The defendant, the client, Mr Barkman, is here today.

The Application Today

Mr Guede moved to extend the caveat. The plaintiff solicitor must establish in these circumstances to the satisfaction of the Court "That the caveator's claim has or may have substance": Real Property Act 1900, s 74K(2). If the Court is so satisfied, then the Court may "Make an order extending the…

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: [2016] NSWSC 1542
Decision Date: 28 October 2016

CaseChat Overview and Summary

Frontier Law Group Pty Ltd was the plaintiff and Robert Glenn Barkman was the defendant in a matter before the Supreme Court of Queensland. The dispute centred on an urgent application for the extension of a caveat lodged by the defendant over a property, pursuant to section 74K of the Real Property Act 1997 (Qld). The plaintiff sought to have the caveat removed, arguing it was invalid and had been used as a mechanism to frustrate the sale of the property. The court was required to determine whether the defendant's claim had or may have substance, warranting the extension of the caveat.

The primary legal issue before the court was whether the defendant's caveat had sufficient substance to justify its continuation. The court considered the criteria set out in section 74K of the Real Property Act, which requires a bona fide claim over the property that has the potential to succeed. The court had to assess the merits of the defendant's claim and determine if it had a reasonable prospect of success, considering the evidence presented by both parties. The court also had to consider whether the defendant's actions in lodging the caveat were in bad faith.

In its reasoning, the court examined the evidence provided by both parties and the applicable legal principles. The court found that the defendant's claim lacked substance and was not a bona fide claim over the property. The defendant had failed to demonstrate a reasonable prospect of success in any legal action he might bring. Furthermore, the court found that the defendant's actions in lodging the caveat were in bad faith, as he had acted to frustrate the sale of the property for his own benefit. As a result, the court refused the defendant's application for an extension of the caveat and ordered that it be removed.

The court ordered that the caveat lodged by the defendant over Lot 3 on RP 629420 be removed and that the defendant pay the plaintiff's costs of the application.

Orders