Gerar Sleiman v Paulette Afeich - [2005] NSWSC 900

CITATION:
Gerar Sleiman v Paulette Afeich & Anor [2005] NSWSC 900

HEARING DATE(S): 30 August 2005

JUDGMENT DATE :

30 August 2005

JUDGMENT OF:
Brereton J

DECISION:
Summons dismissed

CATCHWORDS:
CONVEYANCING - LAND TITLES UNDER TORRENS SYSTEM - Caveats against dealings - Lapsing of Caveats - Application for extension - applicable test - whether seriously arguable case for substantive relief - where previous proceedings claiming same interest compromised - claim not sufficiently arguable - no question of principle. PROCEDURE - Judgments and Orders - Consent order - construction - whether claims not expressly dismissed survive judgment.

LEGISLATION CITED:
Real Property Act, s 74J

CASES CITED:
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618
Appleton Papers Inc v Tomasetti Paper Pty Limited [1983] 3 NSWLR 208
Henderson v Henderson (1843) 3 Hare 100, (1843) 67 ER 313
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Martyn v Glennan [1979] 2 NSWLR 234

PARTIES:
Gerar Sleiman (plaintiff)
Paulette Afeich (first defendant)
Peter Solomon (second defendant)

FILE NUMBER(S):
SC 4672/05

COUNSEL:
J Dupree (plaintiff)
W Carney (defendants)

SOLICITORS:
B J Macree & Co (plaintiff)
Chris Jurd (defendants)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Brereton J

Tuesday 30 August 2005

4672/05 Gerar Sleiman v Paulette Afeich & Anor

JUDGMENT (ex tempore)

1 HIS HONOUR: By summons filed on 25 August 2005 the plaintiff, Gerar Sleiman claims an order extending the operation of caveat number AA373557L until further order of the court. The defendants, Paulette Afeich and Peter Solomon, who are the registered proprietors of the land affected by the caveat, oppose that relief.

2 For the purposes of this application, and without pretending to make findings of fact on a final basis, I take the relevant facts to be as follows. The plaintiff, Mr Sleiman and the second defendant, Mr Solomon (who is also sometimes known as Sleiman) are brothers. The first defendant, Ms Afeich, is the wife of Mr Solomon.

3 On 3 July 1978, Mr Sleiman and Mr Solomon became the registered proprietors of the land comprised in certificate of title volume 13244 folio 15 situate at and known as 46 Arnott Street, Marayong, as tenants in common in equal shares. They apparently remained so registered until, on or about 16 September 2003, Mr Solomon signed a transfer, purportedly as transferor of Mr Sleiman’s share in the property, to Ms Afeich. Mr Solomon says that he signed in the place provided for the signature of the transferor at the request of Mr Sleiman in circumstances where Mr Sleiman’s wife, Norma Sleiman, had instituted proceedings in the Family Court of Australia against Mr Sleiman also joining Mr Solomon and Ms Afeich as additional respondents, in which Norma claimed relief relating to Mr Sleiman’s interest in Arnott Street. Ms Afeich has since accepted the transfer and it has been lodged as registered dealing 9977341T, with the result that the registered proprietors of Arnott Street are now Ms Afeich…

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 Gerar Sleiman v Paulette Afeich

Details

AGLC: Gerar Sleiman v Paulette Afeich [2005] NSWSC 900
Case: [2005] NSWSC 900
Decision Date: 30 August 2005

CaseChat Overview and Summary

The matter between Gerar Sleiman and Paulette Afeich was before the court to determine the validity and effect of certain caveats entered against dealings on a property. The dispute centred on the lapse of these caveats and whether the caveator was entitled to an extension of time to renew them. The court had to determine the applicable legal test for deciding if an application for an extension of time to lodge a caveat should be granted, particularly where the original caveator's claims had been compromised in previous proceedings.

The primary legal issue was the criteria for assessing whether a case is seriously arguable for the purpose of extending the time to lodge a caveat. The court needed to decide if the caveator had a sufficiently arguable case for substantive relief when the claims had been compromised and whether the question of principle was involved. The court also had to interpret a consent order to determine whether the claims not expressly dismissed in the order survived the judgment.

The court found that the test for assessing whether a case is seriously arguable involves considering if the claim is not frivolous or vexatious and if there is a reasonable prospect of success. The court held that in this case, the claims were not sufficiently arguable because they had been compromised in previous proceedings, and there was no question of principle involved. The court also held that claims not expressly dismissed in a consent order do not survive the judgment. Consequently, the application for an extension of time to lodge the caveat was dismissed.

Orders