Gogos v Gogos - [2012] SASC 45

Supreme Court of South Australia
(Applications Under Various Acts or Rules: Application)
GOGOS & ANOR v GOGOS & ORS
[2012] SASC 45
Judgment of The Honourable Justice Kourakis (ex tempore)
15 March 2012
REAL PROPERTY - TORRENS TITLE - CAVEATS AGAINST DEALINGS - REMOVAL - PARTICULAR CASES
Application to extend time for removal of caveat pursuant to s 191(g) of the Real Property Act 1886 pending outcome of appeal – caveat lodged protecting applicants’ unregistered mortgage over respondent’s property – respondent required by terms of loan agreement to obtain applicants’ consent to sale of property – property sold at auction to third parties for a sum resulting in no return under the appellants mortgage – no consent to sale at auctioned price - whether any reasonable prospect that appellants would receive more than a nominal repayment under their mortgage if application granted and property placed back onto market.
Held – application refused
Real Property Act 1886 (SA) s 191(f)(g), referred to.
Pua Hor Ong v Wu You Yang Pty Ltd (2008) 103 SASR 9; Cini v Pets Paradise Franchising (SA) Pty Ltd (2008) 102 SASR 177; Nexus Mortgage Securities v Mawson KLM Holdings & Starmaker (No 51) Pty Ltd (1997) 193 LSJS 474; Manttan v Equititrust Ltd [2010] NSWSC 931; Toma Services Pty Ltd v Kusido Hospitality and Property Group Pty Ltd [2008] NSWSC 492, considered.

GOGOS & ANOR v GOGOS & ORS
[2012] SASC 45

KOURAKIS J (ex tempore): This is an application for an interlocutory order pursuant to s 191(g) of the Real Property Act 1886 (the Act) extending the period after which the Registrar is required to remove a warned caveat pursuant to s 191(f) of the Act. The caveat protects an unregistered mortgage over a home in suburban Adelaide. The house has been sold on a contract which, if completed, would allow a first mortgage to be repaid, almost in full, but with no remainder for the second mortgage.
The applicants before me unsuccessfully applied in the District Court for an order extending the time for removal of the caveat. Their application was refused by a master. They appealed to a judge of the District Court. The Judge of the District Court dismissed the appeal. The applicants have lodged an appeal from the Judge’s order in this Court. They seek the interlocutory order to which I have referred pending the hearing of the appeal.
In my view the applicants have a reasonably strong case that the Master gave insufficient weight to the nature of the underlying security protected by the caveat. In particular, it is my view that in the ordinary course, and assuming there is equity in the charged land, only in exceptional circumstances would an order extending the time for removal of a protective caveat be refused. Where a prima facie case is established by the caveator, the balance of convenience is likely to favour protection of his or her interest in land.[1] The circumstance that…

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 Gogos v Gogos

Details

AGLC: Gogos v Gogos [2012] SASC 45
Case: [2012] SASC 45
Decision Date: 15 March 2012

CaseChat Overview and Summary

In the case of Gogos v Gogos, the applicants sought an extension of time to remove a caveat under section 191(g) of the Real Property Act 1886, pending the outcome of an appeal. The caveat was lodged to protect their unregistered mortgage over the respondent’s property, which was sold at auction to third parties. The applicants argued that the sale should not proceed without their consent, as stipulated in the loan agreement. The court was required to determine whether there was a reasonable prospect that the applicants would receive more than a nominal repayment if the application to extend the time for removal of the caveat was granted.

The court considered the implications of granting the extension, including the potential for the applicants to receive more than a nominal repayment. It assessed the likelihood of achieving a better return on the mortgage if the property were placed back on the market. Ultimately, the court found that there was no reasonable prospect of the applicants receiving more than a nominal repayment, even if the application was granted. Consequently, the application to extend the time for removal of the caveat was refused.

The reasoning of the court was based on the assessment of the financial prospects for the applicants, given the circumstances of the sale and the terms of the loan agreement. The court concluded that the applicants had not demonstrated a sufficient chance of obtaining a significant repayment from the sale of the property, thus declining to grant the extension. The final orders of the court were to refuse the application to extend the time for removal of the caveat.

Orders