Jaken Properties Australia Pty Ltd v Naaman

Case [2024] NSWCA 265

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Jaken Properties Australia Pty Ltd v Naaman [2024] NSWCA 265
Hearing dates: 21 October 2024
Date of orders: 7 November 2024
Decision date: 07 November 2024
Before: Gleeson JA at [1]
Leeming JA at [78]
Griffiths AJA at [79]
Decision:

(1) Summons seeking leave to appeal be dismissed.

(2)   Applicants to pay the respondent’s costs in this Court.

Catchwords:

APPEALS — Leave to appeal — From interlocutory orders refusing to discharge injunctions and asset preservation orders and remove caveat — Where applicants proposed to pay into court a sum of money in lieu of existing injunctions and asset preservation regime — Where applicants alternatively sought removal of caveat to enable refinancing of real property — Where primary judge ordered temporary removal of caveat to permit refinancing to occur — Whether continued danger that prospective judgment debt will be unsatisfied — Whether interests of justice favour continuance of orders — Whether any arguable House v The King error

Legislation Cited:

Conveyancing Act 1919 (NSW), s 37A

Real Property Act 1900 (NSW), s 74MA

Supreme Court Act 1970 (NSW), s 101

Cases Cited:

Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164

Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; [1999] HCA 18

Chamberlain Group Pty Ltd v Kids for Life Academy Pty Ltd [2015] NSWCA 241

Finlayson v Bagala [2024] NSWSC 94

Frigo v Culhaci [1998] NSWCA 88

His Eminence Metropolitan Petar v The Macedonian Orthodox Community Church St Petka Inc [2006] NSWCA 277

House v The King (1936) 55 CLR 499; [1936] HCA 40

Jackson v Sterling Industries Ltd (1987) 162 CLR 612; [1987] HCA 23

Jaken Properties Australia Pty Ltd v Naaman [2020] NSWSC 1554

Jaken Properties Australia Pty Ltd v Naaman [2022] NSWSC 517

Jaken Properties Australia Pty Ltd v Naaman (2023) 112 NSWLR 318; [2023] NSWCA 214

Jaken Properties Australia Pty Ltd v Naaman (No 2) [2023] NSWCA 254

Jaken Properties Australia Pty Ltd v Naaman [2023] NSWSC 268

Marinkovic v Pat McGrath Engineering Pty Ltd (2004) 61 NSWLR 150; [2004] NSWSC 571

Permewan Wright Consolidated Pty Ltd v Attorney-General (NSW) (1978) 35 NSWLR 365

Riley McKay Pty Ltd v McKay [1982] 1 NSWLR 264

Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206

Category:Principal judgment
Parties: Jaken Properties Australia Pty Ltd (First applicant)
Peter Sleiman (Second applicant)
Tony Sleiman (Third applicant)
Powerhouse Corporation Pty Ltd (Fourth applicant)
RHG Nominees Pty Ltd (Fifth applicant)
RHG Properties Pty Ltd (Sixth applicant)
Connells Point Holdings Pty Ltd (Seventh applicant)
Angela Michael (Eighth applicant)
Jake Sleiman (Ninth applicant)
Grant Royal Nominees Pty Ltd (Tenth applicant)
RHG Trading Pty Ltd (Eleventh applicant)
Hotel Grand Holdings Pty Ltd (Twelfth applicant)
Royal Granville Operations Pty Ltd (Thirteenth applicant)
Anthony Naaman (Respondent)
Representation:

Counsel:
J Kelly SC / S Shepherd (Applicants)
P Afshar / E ten Kate (Respondent)

Solicitors:
Jeresyn…

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Details
AGLC
Jaken Properties Australia Pty Ltd v Naaman [2024] NSWCA 265
Case
[2024] NSWCA 265
Decision Date

CaseChat Overview and Summary

Jaken Properties Australia Pty Ltd (the applicants) sought leave to appeal from interlocutory orders made by the primary judge. The dispute concerned injunctions and asset preservation orders, as well as the removal of a caveat. The applicants had proposed to pay a sum of money into court in lieu of the existing injunctions and asset preservation regime, and alternatively sought the removal of a caveat to facilitate the refinancing of real property. The primary judge had ordered the temporary removal of the caveat to permit refinancing.

The court was required to determine whether there was a continued danger that a prospective judgment debt would be unsatisfied, whether the interests of justice favoured the continuance of the existing orders, and whether there was any arguable error in the primary judge's decision, referencing the principles established in *House v The King*.

The court reasoned that the primary judge had correctly considered the relevant factors in refusing to discharge the injunctions and asset preservation orders, and in ordering the temporary removal of the caveat. The court found that the applicants had not demonstrated that the primary judge had erred in law or in fact, and that the interests of justice did not favour the applicants' proposed alternative arrangements. The court concluded that the applicants had not established an arguable case of error on appeal.

Consequently, the summons seeking leave to appeal was dismissed, and the applicants were ordered to pay the respondent’s costs in this Court.

Orders

Orders of the court

(1) Summons seeking leave to appeal be dismissed.

(2) Applicants to pay the respondent’s costs in this Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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