Keremelevski v Keremelevski

[2009] NSWSC 430

CITATION:	Keremelevski v Keremelevski [2009] NSWSC 430
HEARING DATE(S):	27 April 2009
JURISDICTION:	Equity Division
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	27 April 2009
DECISION:	Application for extension of caveat refused, but limited injunction granted restraining defendant from alienating or further encumbering property except on 21 days notice
CATCHWORDS:	APPEALS – application for extension of caveat or injunction pending appeal – relevant considerations – whether appeal is arguable – whether balance of convenience favours granting caveat – Held: limited injunction granted – defendant restrained from alienating or further encumbering property except on 21 days notice to plaintiff
CATEGORY:	Procedural and other rulings
PARTIES:	Fana Keremelevski (plaintiff) Zivko Keremelevski (first defendant) William Keremelevski (second defendant) Sonja Keremelevski (third defendant)
FILE NUMBER(S):	SC 3909/07
COUNSEL:	Ms A Tibbey (plaintiff) Mr G McNally SC (defendants) Mr A McInerney (Boris Keremelevski)
SOLICITORS:	John J Kells (plaintiff) Colin Daley Quinn (defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY LIST

BRERETON J

Monday 27 April 2009

3909/07 Fana Keremelevski v Zivko Keremelevski

JUDGMENT (ex tempore)

1 HIS HONOUR: This application – sometimes incorrectly described as one for a stay – is in truth for a further interlocutory injunction or extension of a caveat pending the hearing of an appeal from proceedings brought by the plaintiff Fana Keremelevski against the defendants, which were dismissed by Hamilton J in a judgment given on 4 December 2008. Notice of Intention to Appeal was filed within time. However, no Notice of Appeal was subsequently filed, apparently because the plaintiff was awaiting the outcome of an application for Legal Aid. It ought to be emphasised that even parties awaiting Legal Aid need sometimes to take steps before they have a grant, and such critical steps as filing a Notice of Appeal within time is usually one of them. However, the defendants have not at this stage not advanced any claim of prejudice arising from the appeal not having been brought in a timely manner, and it appears that they were put on notice that the plaintiff was awaiting the outcome of her application for Legal Aid, which has now been granted.

2 No stay was sought from Hamilton J, and the present application appears to have been provoked by the service by the defendants of a lapsing notice in respect of a caveat which the plaintiff had lodged in respect of the property, over which she claims a constructive trust.

3 Hamilton J's decision turned largely on questions of credit and his Honour preferred the evidence called in the defendants' case over that called in the plaintiff's case. While this is not a promising foundation for an appeal, it cannot be said, at least on the material presently before me, that the appeal is unarguable.

4 Although not properly described as an application for a stay, by analogy, the principles that inform stays pending appeal are relevant in consideration of the present application. The first consideration is whether the plaintiff has shown an arguable case of error, such that the appeal has prospects of success; and the second involves questions of balance of convenience and prejudice arising from the grant or refusal of the relief sought.

5 As I have said, the appeal is not obviously unarguable, though it will encounter those difficulties that are usually involved when the findings of fact of a trial judge based on credit are involved.

6 So far as the balance of convenience and prejudice is concerned, the first factor is whether, if an injunction is not granted, the subject matter of the proceedings may be lost, to the extent that the appeal may be rendered nugatory. It is not clear that this would be so, because there is nothing before me to suggest that the defendants would be unable to give restitution after a successful appeal. However, the plaintiff also expresses a wish – the realism of which may be questioned, but cannot be concluded on the present application – to return to the property. If it were sold in the meantime, that possibility would be lost.

7 A second significant factor on the balance of convenience is that the plaintiff's undertaking as to damages, which is offered, is of practically no value. On the other hand, there is no evidence that the defendants presently wish to sell the subject property; there was some reference to an intention at one stage in the past to let it for rent, but there is no evidence before me that there is any present intention to do so.

8 In circumstances where not only has Hamilton J concluded that the plaintiff does not have an interest in the subject property, but also the basis upon which the caveat claims an interest was not even pressed at the trial, it would be quite inappropriate to extend the operation of the caveat. However, a reasonable balance between the risk of prejudice to the plaintiff in not granting the relief sought, and the risk of prejudice to the defendants from doing so, can be achieved by a limited injunction, which simply requires notice to the plaintiff of any proposed adverse dealing with the property. That course will enable consideration to be given, but only when required, to whether the defendants should be permitted to sell the property, and if so whether any proceeds should be preserved so that there would be a fund from which equitable compensation could be paid if the appeal succeeded; or whether the defendants should be entirely restrained from alienating the property.

9 Accordingly, my order is that, upon the plaintiff Fana Keremelevski by her counsel giving to the Court the usual undertaking as to damages, the defendants Zivko Keremelevski and Sonya Keremelevski be restrained until the hearing of the appeal in proceedings 401XX/09 or further order from, by themselves, their servants or agents, alienating or further encumbering the property situate at and known as XX Union Street, Erskinville in the State of New South Wales, being the land comprised in lot A Deposited Plan 4475XX, except upon having given 21 days written notice of their intention so to do to the plaintiff's solicitors, such notice to specify the parties to, quantum and nature of the proposed dealing. I direct that this order be entered forthwith. Costs of the motion will be costs in the appeal.

10 In respect of Mr McInerney's application, I grant leave, insofar as it is required, to Boris Keremelevski to file a motion in these proceedings on or before 28 April 2009, in respect of the undertaking as to damages given on 1 August 2007, such Motion to be returnable on 6 May 2009 before the Registrar.

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