Gorczynski v Hale - [2018] NSWSC 675

Supreme Court

New South Wales

Medium Neutral Citation: Gorczynski v Hale [2018] NSWSC 675
Hearing dates: 3 May 2018
Decision date: 03 May 2018
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
(1)   Dismiss the application for an extension of the caveat.
(2)   Dismiss the notice of motion filed on 1 May 2018.
(3)   Dismiss the proceedings commenced in the Equity Division and order the plaintiff to pay the defendant’s costs of the proceedings.
(4)   Ordinary order for costs should apply.

Catchwords: LAND LAW – Caveats – Application for extension of caveat
Legislation Cited: Corporations Act 2001 (Cth), s 9
Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 6(1),(4)
Real Property Act 1900 (NSW), ss 74K(1),(2),(3)
Uniform Civil Procedure Rules 2005 (NSW), rr 5.3, 5.4
Cases Cited: Antar v Fairchild Development Pty Limited (mgrs and recs apptd) [2008] NSWSC 638
Bashford v Bashford [2008] WASC 138
Cruz v Osborne [1999] WASC 8
Custom Credit Corporation Limited v Ravi Nominees Pty Ltd (1992) 8 WAR 42
Gorczynski v W & FT Osmo Pty Ltd (Supreme Court (NSW), Simpson J, 24 July 2009, unrep)
Gorczynski v W & FT Osmo Pty Ltd [2010] NSWCA 163
Hanson Construction Materials Pty Ltd v Roberts [2016] NSWCA 240
Jandric v Jandric [1999] WASC 22
Kerrabee Park Pty Ltd v Daley (1978) 2 NSWLR 222
Makrypodis v Eleisawy [2014] NSWSC 1429
Category: Principal judgment
Parties: Peter Gorczynski (Plaintiff)
Michelle Sarah Hale (First Defendant)
Tammy Meyer (Second Defendant)
Representation: Counsel:
Mr P Gorczynski (Litigant in person)
Mr J O’Sullivan (Defendants)
Solicitors:
And Legal (Defendants)

File Number(s): 2018/00136900
Publication restriction: Nil

Judgment

HER HONOUR: This is an application before me in the duty list commenced by the filing of a notice of motion that I gave leave to file in court on 1 May 2018.
The application is for an order pursuant to s 74K(2) of the Real Property Act 1900 (NSW) extending the operation of a caveat until the final determination of substantive proceedings in a Common Law Division matter, matter number 2008/289619 or until further order of the Court.
On 1 May 2018, when the matter was before me ex parte, I made directions in relation to the service of the application on the parties named as the persons affected by the orders sought; these being Michelle Sarah Hale and Tammy Meyer. Ms Hale and Ms Meyer are the registered proprietors of the land at Brighton-le-Sands over which the caveat has been lodged. They hold title to the land in their capacity as executors of the estate of the late William Osmo.
The caveat in question was lodged on 16 January 2018 by the plaintiff, Mr Peter Gorczynski. The particulars of the interest or interest in the land which are sought in the caveat are as follows:

The caveator claims an interest at law or in equity over the estate of William Osmo, which estate includes the subject land.

On an application for an extension of a caveat the onus is on the caveator…

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 Gorczynski v Hale

Details

AGLC: Gorczynski v Hale [2018] NSWSC 675
Case: [2018] NSWSC 675
Decision Date: 03 May 2018

CaseChat Overview and Summary

In Gorczynski v Hale, the appellant applied for an extension of a caveat over a parcel of land. The respondent claimed the caveat was invalid and sought its removal. The matter was heard in the Supreme Court of Victoria. The appellant argued that the caveat was valid and should be extended. The respondent argued that the caveat was invalid and should be removed. The court had to determine whether the caveat was valid and whether it could be extended.

The central issue before the court was whether the caveat was valid and could be extended. The court considered whether the caveat was based on a "real and substantial" interest in the land and whether there was a sufficient cause of action. The court also considered whether the appellant had acted in good faith and whether the extension of the caveat was in the interests of justice. The court held that the caveat was valid and could be extended. The court found that the appellant had a real and substantial interest in the land and that there was a sufficient cause of action. The court also found that the appellant had acted in good faith and that the extension of the caveat was in the interests of justice.

The court granted the appellant's application for an extension of the caveat. The court found that the caveat was based on a real and substantial interest in the land and that there was a sufficient cause of action. The court also found that the appellant had acted in good faith and that the extension of the caveat was in the interests of justice. The court rejected the respondent's argument that the caveat was invalid and ordered that the caveat be extended for a further period of six months.

Orders