Kim v Anwar - [2021] NSWSC 930

Supreme Court

New South Wales

Medium Neutral Citation: Kim v Anwar [2021] NSWSC 930
Hearing dates: 28 July 2021
Date of orders: 28 July 2021
Decision date: 28 July 2021
Jurisdiction: Equity
Before: Darke J
Decision:
Caveat ordered to be withdrawn pursuant to s 74MA of the Real Property Act. No order as to costs to the intent that each party bear their own costs of the proceedings.

Catchwords:
LAND LAW – caveats – extension or removal of caveats – defendant lodged caveat over the plaintiffs’ property – claimed interest described as a charge – no evidence of any agreement creating a charge over the plaintiffs’ property – no serious question to be tried – plaintiffs entered into a contract for the sale of the property with third party purchaser – purchaser issued notice to complete – balance of convenience favours removal of caveat – order that the defendant withdraw caveat pursuant to section 74MA of the Real Property Act 1900 (NSW)
COSTS – departure from the general rule – successful plaintiffs seek costs on indemnity basis – defendant’s caveat was lodged with consent or concurrence of first plaintiff – lodgement of caveat part of arrangement intended to hinder or undermine completion of contract for sale to which plaintiffs were bound – lodgement of caveat an abuse of caveat system – first plaintiff and defendant both responsible for abuse – cost of proceedings as much a product of arrangement between first plaintiff and defendant as a product of defendant’s refusal to withdraw caveat – appropriate to depart from the general rule – no order made as to costs to the intent that each party bear their own costs of the proceedings

Legislation Cited:
Real Property Act 1900 (NSW), s 74MA

Cases Cited:
Hanson Construction Materials Pty Limited v Roberts (2016) 93 NSWLR 1; [2016] NSWCA 240

Category: Principal judgment
Parties: Young Mi Kim (First Plaintiff)
Ryung Han (Second Plaintiff)
Decky Anwar (Defendant – self represented)
Representation:
Counsel:
Mr J R B Pearson (Plaintiffs)
Solicitors:
Al Sarray Lawyers (Plaintiffs)

File Number(s): 2021/200110
Publication restriction: None

Judgment – EX TEMPORE

By a Summons filed on 13 July 2021, the plaintiffs seek an order under s 74MA of the Real Property Act 1900 (NSW) for the defendant to withdraw a caveat he lodged against the title to a property in Blakehurst that is owned by the plaintiffs.
The first plaintiff is the mother of the second plaintiff. The defendant is the father of the second plaintiff. The defendant and the first plaintiff remain married, but have separated and are now estranged from each other.
The Summons was supported by the affidavit of the first plaintiff, Young Mi Kim, sworn on 12 July 2021. The defendant, Decky Anwar, who opposes the making of the order, relies upon his affidavit affirmed on 23 July 2021. Each of the plaintiffs swore affidavits in reply on 27 July 2021.
The application has been brought on urgently in circumstances where the Blakehurst property is the subject 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 Kim v Anwar

Details

AGLC: Kim v Anwar [2021] NSWSC 930
Case: [2021] NSWSC 930
Decision Date: 28 July 2021

CaseChat Overview and Summary

The case of Kim v Anwar involved a dispute over a caveat lodged by the defendant over the plaintiffs' property. The defendant claimed an interest in the form of a charge over the property, but there was no evidence to support this claim. The plaintiffs had entered into a contract for the sale of the property with a third-party purchaser, who had issued a notice to complete. The plaintiffs sought an order for the removal of the defendant's caveat, arguing that the balance of convenience favoured its removal. The court was required to determine whether the defendant's caveat was valid and whether it should be removed.

The court found that there was no serious question to be tried regarding the defendant's interest in the property. The defendant had not provided any evidence to support their claim of a charge over the property. The court also found that the balance of convenience favoured the removal of the caveat, as the plaintiffs had entered into a binding contract for the sale of the property. The court ordered the defendant to withdraw the caveat pursuant to section 74MA of the Real Property Act 1900 (NSW). The court also considered the issue of costs, finding that the defendant's caveat was lodged as part of an arrangement intended to hinder or undermine the completion of the contract for sale. The court found that it was appropriate to depart from the general rule and award costs on an indemnity basis to the plaintiffs. However, no order was made as to costs to the intent that each party bear their own costs of the proceedings.

Orders