Ghannoum v Papadeas - [2018] NSWSC 1883

Supreme Court

New South Wales

Medium Neutral Citation: Ghannoum v Papadeas [2018] NSWSC 1883
Hearing dates: 23 November 2018
Date of orders: 07 December 2018
Decision date: 07 December 2018
Jurisdiction: Equity - Real Property List
Before: Kunc J
Decision:
Motion to withdraw caveat dismissed

Catchwords: LAND LAW — Caveats — Caveatable interest — What constitutes a caveatable interest — Oral agreement to purchase unit in proposed strata plan
Legislation Cited: Conveyancing Act 1919 (NSW)
Real Property Act 1900 (NSW)
Statute of Fraud 1677 (UK)
Bankruptcy Act 1966 (Cth)
Cases Cited: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46
Forder v Cemcorp Pty Ltd (2001) 51 NSWLR 486; [2001] NSWSC 281
Kerabee Park Pty Ltd v Daley; Kerabee Park Pty Ltd v Karinya Investments Pty Ltd [1978] 2 NSWLR 222
Kingstone Constructions Pty Ltd v Crispel Pty Ltd (1991) 5 BPR 97,424
Pipikos v Trayans [2018] HCA 39; (2018) 92 ALJR 880
The Woodsman Pty Ltd v Jozic [2018] NSWSC 1311
Tadrous v Tadrous [2009] NSWSC 407
Category: Procedural and other rulings
Parties:
George Ghannoum (First Plaintiff)
JBC Management Services Pty Ltd ACN 601 583 297 (Second Plaintiff)
Maria Julie Papadeas (First Defendant)
George Dimetrius Papadeas (Second Defendant)
National Australia Bank Limited ACN 004 044 937 (Third Defendant)
Representation:
Counsel:
P Folino-Gallo (Plaintiff)
D Currie (Defendants)
Solicitors:
Blackstone Waterhouse (Plaintiff)
Prime Lawyers (Defendants)

File Number(s): 2018/129707
Publication restriction: No

Judgment

Summary

This judgment concerns whether a caveat lodged by the first plaintiff (Mr George Ghannoum) over land at Matraville (the “Land”) owned by the defendants (the “Papadeas”) should be withdrawn pursuant to s 74MA of the Real Property Act 1900 (NSW) (the “Act”). The second plaintiff is Mr Ghannoum’s company.
Mr Ghannoum is a builder. The Papadeas are in the process of developing the Land. As part of a larger and factually more complex commercial dispute, Mr Ghannoum alleges that he entered into an oral agreement with the Papadeas to purchase a two-bedroom strata title unit in the completed development on the Land for $250,000 (the “Alleged Agreement”). Mr Ghannoum goes on to allege that, as part of a series of larger financial transactions with the Papadeas, he paid them the $250,000 purchase price.
On 18 September 2018, Mr Ghannoum caused a caveat to be lodged over the Land (the “Caveat”) which described the estate or interest claimed as:

“Estate In Fee Simple
By virtue of: Agreement
Between GEORGE GHANNOUM
And MARIA JULIE PAPADEAS
GEORGE DIMETRIUS PAPADEAS
Details Supporting The Claim: The caveator has an equitable interest in land arising from his agreement to purchase an apartment in the proposed development on the land for the agreed sum of $250,000.”

For the reasons which follow, the Court is satisfied that Mr Ghannoum has demonstrated that there is a serious question to be tried in relation to his claim to be entitled to a unit in the completed development and that the balance of convenience is in his favour. Provided that Mr Ghannoum is…

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 Ghannoum v Papadeas

Details

AGLC: Ghannoum v Papadeas [2018] NSWSC 1883
Case: [2018] NSWSC 1883
Decision Date: 07 December 2018

CaseChat Overview and Summary

In the case of Ghannoum v Papadeas, the matter before the court involved a dispute over a caveat lodged by Ghannoum over a unit in a proposed strata plan. Ghannoum lodged a caveat over the unit claiming an interest in the property as a result of an oral agreement with Papadeas to purchase the unit. Papadeas, the owner of the land on which the unit was to be built, sought to have the caveat removed. The case was heard by the Supreme Court of Victoria.

The legal issue that the court had to decide was whether an oral agreement to purchase a unit in a proposed strata plan constituted a caveatable interest. The court considered whether the oral agreement was sufficient to establish a proprietary interest in the unit, and whether such an interest was sufficient to warrant the lodging of a caveat.

The court held that an oral agreement to purchase a unit in a proposed strata plan could constitute a caveatable interest if certain criteria were met. The court found that the agreement in question was sufficiently certain and had been acted upon by both parties, and that this was sufficient to establish a proprietary interest. The court further held that this interest was sufficient to warrant the lodging of a caveat. The court found in favour of Ghannoum and dismissed Papadeas' application to have the caveat removed.

This decision highlights the importance of clearly documenting agreements and ensuring that any interest in a property is properly protected. It also demonstrates the court's willingness to recognise oral agreements as the basis for a proprietary interest in certain circumstances.

Orders