Haris v Yigiter - [2011] SASC 184

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
HARIS v YIGITER & ANOR
[2011] SASC 184
Reasons for Decision of The Honourable Justice Blue
20 October 2011
REAL PROPERTY - TORRENS TITLE - CAVEATS AGAINST DEALINGS - EXTENSION
The plaintiff lodged a caveat over two properties - the defendants applied for removal of the caveat - the plaintiff seeks an extension of time for removal of the caveat pending trial - whether serious question to be tried - whether balance of convenience favours extension - whether undertaking as to damages provided.
Held: Caveat extended in respect of the first property but not the second property upon the plaintiff providing the usual undertaking as to damages - the defendants restrained from dealings with the second property upon the plaintiff providing the usual undertaking as to damages.
Real Property Act 1886 (SA) s 69(b) and s 191(j), referred to.
Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; Fejo v Northern Territory (1998) 195 CLR 96; Galvasteel Pty Ltd v Monterey Building Pty Ltd (1974) 10 SASR 176; Nexus Mortgage Securities v Starmaker (No 51) Pty Ltd [1997] SASC 6347; Thompson v White [2006] NSWSC 110; Whallin v Bailbart Investments Pty Ltd (1987) 47 SASR 198, considered.

HARIS v YIGITER & ANOR
[2011] SASC 184
Civil

BLUE J. The plaintiff, Mr Haris, seeks an order for an extension of time for the removal of a caveat over two Certificates of Title in respect of which the first and second defendants, Mrs and Mr Yigiter, are the registered proprietors.
The Facts
Mr Haris relies upon three affidavits sworn on 27 January, 27 August and 6 October 2011.
Mrs and Mr Yigiter rely upon three affidavits sworn by Mrs Yigiter on 14 April, 18 August and 13 October 2011.
Mr Haris and Mrs Yigiter are brother and sister. Their parents are Mr and Mrs Subasi.
There are two properties which are the subject of the caveat, namely properties situated in McLean Street, Elizabeth Park and Grayling Street, Elizabeth East.
There is a third property situated at Woodford Road, Elizabeth North which potentially may be the subject of a claim by Mr Haris against Mrs and Mr Yigiter and is referred to in the affidavits, but is not relevant to the caveat.
There is a fourth property situated at Prunus Avenue, Elizabeth Vale which is not the subject of the caveat but is referred to in the affidavits and is relevant to the claim the subject of the caveat in respect of the property in Grayling Street, Elizabeth East.
I address the third and fourth properties first.
Woodford Road Property
On 24 October 2003, Mr Haris settled the purchase of a house property (“Woodford Road”) situated in Woodford Road, Elizabeth North for $120,000.
On 7 October 2005, a transfer of Woodford Road for $156,750 from Mr Haris to arm’s length purchasers was lodged for registration with the Registrar-General, and was registered on 24 October 2005.
The plaintiff’s case is that 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.

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Details

Case: [2011] SASC 184
Decision Date: 20 October 2011

CaseChat Overview and Summary

In the case of Haris v Yigiter, the dispute involved issues related to property and financing. Mr Haris lodged caveats against two properties, McLean Street and Grayling Street, owned by the Yigiters, to protect his equity interest in McLean Street. The court had to determine whether to extend the caveat over Grayling Street and if it was appropriate to replace it with an injunction. The case required the court to balance the interests of both parties, considering factors such as the value of the equity interest, the nature of the claims, and the possibility of refinancing the loan.

The primary legal issue before the court was whether to extend the caveat over Grayling Street or replace it with an injunction, considering the differences in the claims over the two properties and the potential impact on Mr Haris' equity interest. The court had to assess the balance of convenience and the value of Mr Haris' equity in McLean Street, as well as the possibility of refinancing the existing loan into two separate loans secured over each property.

The court granted an extension of time for the removal of the caveat over McLean Street, subject to Mr Haris providing an undertaking as to damages. The court also granted liberty to the parties to apply for appropriate orders if the Yigiters decided to sell the property or refinance the loan. However, in respect of Grayling Street, the court decided not to extend the caveat but instead replace it with an injunction restraining the Yigiters from dealing with the property without prior authorisation by the court. The court would be open to varying the injunction if the Yigiters refinanced the loan into two separate loans, secured separately over each property.

The final orders of the court were to grant an extension of time for the removal of the caveat over McLean Street, subject to an undertaking as to damages, and to replace the caveat over Grayling Street with an injunction. The court also granted liberty to the parties to apply for appropriate orders under certain circumstances.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

BLUE J

In relation to Grayling Street, it is common ground that the property is vacant and has been vacant since it was purchased in March 2010. I was informed (although not provided with evidence) by Mrs and Mr Yigiter that they intended to renovate the kitchen and bathroom, and to that intent removed the old bathroom and kitchen but have not replaced them. I was informed that they need to borrow $25,000 to $30,000 to undertake those renovations. In addition, I was provided with the information referred to at paragraph [57] above in relation to the possibility of refinancing the loan from Adelaide Bank with two separate loans from an alternative financier.ConclusionMcLean Street In all of the circumstances, if Mr Haris gives the usual undertaking as to damages, the balance of convenience favours the granting of an extension of time in which to remove the Caveat. Subject to the provision of an undertaking as to damages, I will grant an extension of time for removal of the Caveat until the trial and determination of the action. However, I will also grant liberty to the parties to apply. In the event that Mr and Mrs Yigiter decide that they wish to sell the property, or have a specific proposal for the refinancing of the Adelaide Bank loan, they are at liberty to apply for such orders as might be appropriate to permit this to occur. I would be disposed to permit this, provided that Mr Haris’ equity in the property (on his case is preserved), but it would be a matter for consideration at that time as to whether such orders should be made, and if so in what circumstances and on what terms.Grayling Street Different considerations apply to the application for an extension of time in respect of Grayling Street. First, Mr Haris’ claim in respect of McLean Street is a direct claim; whereas his claim in respect of Grayling Street is an indirect claim, and in one sense contingent upon his equity in McLean Street actually being reduced. Secondly, it is desirable, if possible, that the existing single loan from Adelaide Bank secured over both properties be replaced by two separate loans, secured separately over each property, and it is possible that this could be done without prejudice to Mr Haris’ claim to his equity in McLean Street. Thirdly, I take into account that the value of Mr Haris’ equity (on his case) in McLean Street was of the order of $30,000 as at March 2010. Fourthly, Mr Haris lodged a single caveat over both properties, notwithstanding that the nature and extent of his claimed interest in the two properties is different. In all of the circumstances, it is appropriate that the Caveat not be extended in respect of Grayling Street, but rather that it be replaced by an injunction restraining Mrs and Mr Yigiter from selling, mortgaging, charging or dealing with Grayling Street without prior authorisation by the Court. In particular, if Mrs and Mr Yigiter were able to refinance the loan from Adelaide Bank with two separate loans, secured separately over each of the two properties, I would be disposed to vary the injunction so as to permit the refinancing (depending, of course, upon the amount and terms of each loan).

Ratio Decidendi

Legal Principle Established

Established by: BLUE J

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