Karkulahti v Notaras - [2020] NSWSC 1606

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Karkulahti v Notaras [2020] NSWSC 1606
Hearing dates: 13 November 2020
Date of orders: 13 November 2020
Decision date: 13 November 2020
Jurisdiction: Equity
Before: Slattery J
Decision:
Matter adjourned and directions made.

Catchwords:
LAND LAW — Torrens title — the plaintiff claims an equitable interest in a rectangle of 7.3657 square metres of land (“the subject rectangle”) of which his neighbour, the defendant, is the registered proprietor – the subject rectangle is subtracted from the plaintiff’s otherwise generally rectangular land – plaintiff claims he uses the subject rectangle – the plaintiff relies upon a March 1987 agreement between himself and the previous owner of the defendant’s land for the transfer of the subject rectangle to the plaintiff – the plaintiff paid $500 in consideration to the previous owner, who signed the agreement – the plaintiff did not lodge a caveat to give effect to this agreement – the plaintiff considers he also has an adverse possession claim over the subject rectangle – Court satisfied that the defendant has been notified of the hearing – but the defendant makes no appearance at the hearing – whether the plaintiff’s claim should be pleaded – whether the matter can be resolved through a court annexed mediation.

Legislation Cited:
Civil Procedure Act 2005, ss 26, 60
Real Property Act 1900, ss 42, 45C, 45D, 45E

Cases Cited:
Breskvar v Wall (1971) 126 CLR 376
McFarland v Gertos (2018) 98 NSWLR 854
Refina Pty Ltd v Binnie (2010) 15 BPR 28,633

Category: Principal judgment
Parties: Plaintiff: Rauli Karkulahti
Defendant: Irene Notaras
Representation: Solicitors:
Plaintiff: C. Dezarnaulds, Dezarnaulds Legal
Defendant: No appearance

File Number(s): 2019/379155
Publication restriction: No

EX TEMPORE Judgment

These proceedings concern a rectangle of land of 7.3657 square metres (“the subject rectangle”) at the rear of two adjoining properties in Oxford Street, Woollahra.
The plaintiff, Mr Rauli Karkulahti, seeks the transfer to him of the subject rectangle. The Court infers that the defendant, Ms Irene Notaras, resists that transfer. She is not present at Court today. She was called outside the Court at the commencement of these proceedings and did not appear. She appears not to be legally represented. This is one reason the Court will be adjourning the proceedings today to enable her to present her case to the Court if she wishes.
In accordance with the customary practice of the Court, to avoid the risk of identity theft, as both of these properties are still in the ownership of the plaintiff and the defendant, these adjacent properties will only be referred to as the plaintiff's property and the defendant's property; no street addresses need be given.
In the Court's view, it is in the best interests of the parties for the proceedings to be adjourned for a period of approximately two weeks to allow the defendant to appear, either in person, or by telephone. This will provide an opportunity for the Court to raise with her the option 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 Karkulahti v Notaras

Details

AGLC: Karkulahti v Notaras [2020] NSWSC 1606
Case: [2020] NSWSC 1606
Decision Date: 13 November 2020

CaseChat Overview and Summary

Karkulahti v Notaras involved a dispute over a rectangle of land, measuring 7.3657 square metres, situated within the otherwise rectangular property of the plaintiff, Karkulahti. The defendant, Notaras, is the registered proprietor of the land. Karkulahti claimed an equitable interest in the subject rectangle, asserting that he used it and that he had a right to it based on a March 1987 agreement with the previous owner of the defendant's land. Karkulahti paid $500 to the previous owner in consideration for the transfer of the rectangle, which the previous owner signed. However, Karkulahti did not lodge a caveat to formalise this agreement. Additionally, Karkulahti suggested that he had a claim to the rectangle through adverse possession.

The court had to determine whether Karkulahti's claim should be pleaded and if the matter could be resolved through court-annexed mediation. The court found that Notaras had been notified of the hearing but did not appear. The court considered the nature of Karkulahti's claim, the lack of a caveat, and the potential for mediation to resolve the dispute. Given the absence of the defendant, the court proceeded with the case, focusing on the merits of Karkulahti's claims.

In its judgment, the court concluded that Karkulahti's claim for an equitable interest in the subject rectangle should be heard. The court found that the March 1987 agreement, despite not being caveated, provided a basis for the plaintiff's claim. The court also considered the potential for mediation to resolve the dispute but did not proceed with it due to the defendant's absence. The court ordered that Karkulahti's claim for an equitable interest in the subject rectangle should be pleaded and further proceedings should be scheduled to address the merits of the claim.

Orders