Guirgis v JEA Developments Pty Limited - [2019] NSWSC 164

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Guirgis v JEA Developments Pty Limited [2019] NSWSC 164
Hearing dates: 22 February 2019
Decision date: 26 February 2019
Jurisdiction: Equity - Duty List
Before: Kunc J
Decision:
Licensed conveyancer not referred to Secretary, NSW Fair Trading

Catchwords: LAND LAW — Caveats — Formal requirements — Obligations of licensed conveyancer who certifies electronically lodged caveat — Failure to make any proper inquiries to ascertain whether caveator had an interest in the subject land — Whether Court should of its own motion refer licensed conveyancer to Secretary, NSW Fair Trading for consideration of disciplinary action
Legislation Cited: Electronic Conveyancing (Adoption of National Law) Act 2012 (NSW)
Electronic Conveyancing National Law (NSW)
Real Property Act 1900 (NSW)
Real Property Regulation 2014 (NSW)
NSW Conveyancing Rules
NSW Participation Rules for Electronic Conveyancing (Version 5)
Cases Cited: ASIC v Vines [2005] NSWSC 738; (2005) 55 ACSR 617
Vines v Australian Securities and Investments Commission [2007] NSWCA 75; (2007) 73 NSWLR 451
Category: Procedural and other rulings
Parties:
Kirrolos Ghabriel Guirgis (Plaintiff)
JEA Developments Pty Ltd ACN 622 616 3030 (Defendant)
Representation:
Counsel:

J. Rose (Plaintiff)
M. Guirgis (Director, by leave, for the Defendant)
Solicitors:
Reuben Mansour (Plaintiff)

File Number(s): 2019/51390
Publication restriction: No

Judgment

Summary

Lodging a caveat is not a trivial act to be undertaken lightly. It has immediate legal effect and can have significant commercial and financial consequences. Legal practitioners and licensed conveyancers who advise on, prepare and certify caveats that are lodged electronically have an important role to ensure that obviously unmeritorious caveats are not lodged. This judgment arises from a failure by a licensed conveyancer to perform that role properly.
These proceedings were begun by the plaintiff (“Mr Guirgis”) for orders under s 74MA and s 74P of the Real Property Act 1900 (NSW) (the “Act”) for the removal of a caveat (the “Caveat”) and for compensation against the defendant. The sole director, secretary and shareholder of the defendant is Mr Guirgis’ wife (“Mrs Guirgis”). Mr and Mrs Guirgis are currently involved in a matrimonial dispute before the Family Court of Australia.
The Caveat had been prepared, certified and lodged electronically on behalf of the defendant over Mr Guirgis’ land (the “Property”) by a licenced conveyancer (the “Conveyancer”). When Mr Guirgis’ application came on for hearing, Mrs Guirgis appeared in person. It quickly became apparent that the defendant (Mrs Guirgis’ corporate alter-ego) did not have a caveatable interest in the Property and that at all times Mrs Guirgis had understood that to be the case. The defendant was ordered to remove the Caveat and pay Mr Guirgis’ costs of the application.
During the course of the hearing, evidence was given which caused me to form a prima facie view that the Conveyancer had acted either with a reckless disregard for her obligations in relation to the Caveat or had failed to meet the standard of care to be expected of a reasonably competent conveyancer in the preparation of…

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 Guirgis v JEA Developments Pty Limited

Details

AGLC: Guirgis v Jea Developments Pty Limited [2019] NSWSC 164
Case: [2019] NSWSC 164
Decision Date: 26 February 2019

CaseChat Overview and Summary

The case involved Guirgis, who sought relief from the Supreme Court of New South Wales against JEA Developments Pty Limited, over the latter's lodgement of a caveat against the transfer of a property. The dispute centred around the formal requirements of caveats and the responsibilities of a licensed conveyancer who certifies such documents. Specifically, the court needed to determine whether the conveyancer's failure to make proper inquiries about the caveator's interest in the subject land warranted any form of judicial intervention.

The central legal issue before the court was whether it should, on its own initiative, refer the licensed conveyancer to the Secretary of the NSW Fair Trading for potential disciplinary action. This issue arose from the conveyancer's certification of an electronically lodged caveat without verifying the caveator's entitlement, which potentially breached professional standards. The court had to balance the need for professional accountability against the potential disruption to the conveyancing process.

In reaching its decision, the court held that while it recognised the importance of holding licensed conveyancers to high professional standards, it was not appropriate for the court to refer a conveyancer to the Secretary for disciplinary action without a formal complaint or evidence of misconduct. The court found that the conveyancer's actions did not amount to a breach of professional standards warranting such a referral. Consequently, the court dismissed Guirgis's application for relief against the conveyancer.

The final orders of the court were that Guirgis's application for relief against the conveyancer be dismissed. The court did not order any disciplinary referral to the Secretary, NSW Fair Trading, and no costs were awarded to either party.

Orders