Gilles v Penson - [2014] NSWSC 1585

Supreme Court

New South Wales

Medium Neutral Citation: Gilles v Penson [2014] NSWSC 1585
Hearing dates: 4, 6 & 7 November 2014
Decision date: 07 November 2014
Jurisdiction: Equity Division - Duty List
Before: Slattery J
Decision:
See paragraph [38] of judgment.

Catchwords: PROCEDURE - interlocutory issues - plaintiffs seek to extend a caveat over real property owned by the defendant - plaintiffs claim an equitable interest by way of charge over the property - whether extended caveat based on the same facts as the first caveat under Real Property Act s 74O - whether plaintiffs should be granted leave to file a further caveat over the property.
Legislation Cited: Real Property Act 1900, s 74J, s 74O
Cases Cited: Gurwitz v Gurwitz (1988) V ConvR 54-317
JC Williamson Ltd v Lukey (1931) 45 CLR 282
McCulloch v Fern (2000) 10 BPR 18,073 Sinn v National Westminster Finance Limited [1985] VR 363
Taylor v Commonwealth Development Bank of Australia (1992) ANZ ConvR 161
Category: Interlocutory applications
Parties: Plaintiff: Joseph John Gilles
Defendant: Shirley Penson
Representation: Solicitors:
Plaintiff: Ms P. L. Becker,
Defendant: in person

File Number(s): 2014/324999
Publication restriction: No

EX TEMPORE Judgment

Shirley Penson, the defendant and her company Aquaqueen Pty Limited are alleged former clients of the plaintiffs, solicitors practising in the Sydney suburb of Matraville, as "Giles Payne & Co" ("the firm").

Extensive disputes exist about Aquaqueen and Mrs Penson's liability for the payment of costs to the firm. The firm claims that Mrs Penson gave an equitable charge over certain real property she owns in order to secure Aquaqueen's and her obligations to the firm. Mrs Penson says that Aquaqueen was the firm's client and she did not charge her property to the firm.

In the present dispute in the equity duty list the firm seeks to extend a caveat over Mrs Penson's Alexandria property (hereafter referred to as "the Alexandria property") or to have leave to file a fresh caveat. Mrs Penson opposes any extension of the caveat, or the filing of a fresh caveat.

The matter first came into the duty list on 4 November. Ms Becker appeared for the firm and Mrs Penson appeared in person. The Court permitted the filing of a summons which claimed an order extending the operation of caveat AH14780 over the Alexandria property until further order, or until determination of the substantive proceedings. The Court extended the caveat until 5.00pm on 6 November 2014 and ordered Mrs Penson to serve on the firm any affidavit on which she sought to rely by 5.00pm on the following day, 5 November. Consequent upon the service of a notice under the Real Property Act, s 74J, the caveat AH14780 was due to expire at midnight on 4 November, the same day on which Ms Becker made her application.

This case is an illustration of the dangers of lawyers coming up to Court on the last day of the life of a caveat. After Ms Becker left the Court, having obtained 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.

Continue reading Gilles v Penson

Details

AGLC: Gilles v Penson [2014] NSWSC 1585
Case: [2014] NSWSC 1585
Decision Date: 07 November 2014

CaseChat Overview and Summary

The matter of Gilles v Penson came before the court, where the plaintiffs sought to extend a caveat over real property owned by the defendant. The plaintiffs claimed an equitable interest by way of charge over the property, and the legal issues before the court involved whether the extended caveat was based on the same facts as the initial caveat under section 74O of the Real Property Act, and if the plaintiffs should be granted leave to file a further caveat over the property. The court was required to consider the application of section 74O of the Real Property Act and the principles of equity in determining whether the plaintiffs were entitled to the relief sought.

The court held that the extended caveat was based on the same facts as the initial caveat, and therefore, the plaintiffs were not entitled to lodge a further caveat over the property. The court found that the plaintiffs' claims were speculative and not supported by the evidence presented, and that the plaintiffs had not demonstrated a genuine need for the extended caveat. The court further held that the plaintiffs had not satisfied the requirements of section 74O of the Real Property Act, and that the plaintiffs' application for leave to file a further caveat over the property should be dismissed.

The court dismissed the plaintiffs' application for leave to file a further caveat over the property, and made no order as to costs. The court held that the plaintiffs had not demonstrated a genuine need for the extended caveat, and that the plaintiffs' claims were speculative and not supported by the evidence presented. The court further held that the plaintiffs had not satisfied the requirements of section 74O of the Real Property Act, and that the plaintiffs' application for leave to file a further caveat over the property should be dismissed.

Orders