Kitanovski v Ibrahim - [2022] NSWSC 1232

Supreme Court

New South Wales

Medium Neutral Citation: Kitanovski v Ibrahim [2022] NSWSC 1232
Hearing dates: 5 September 2022
Date of orders: 14 September 2022
Decision date: 14 September 2022
Jurisdiction: Equity
Before: Darke J
Decision:
Orders to be made for specific performance of a contract for the sale of land, together with orders for the withdrawal of caveats, subject to a condition that a sum of money be paid into Court.

Catchwords:
REAL PROPERTY – caveats – withdrawal of caveats – application pursuant to section 74MA of the Real Property Act 1900 (NSW) – where caveats preventing completion of a specifically enforceable contract for the sale of land – where the purchase price for the land is well below market value – where completion of the contract at the price listed would prejudice caveators’ claimed charges over the vendor’s land – whether there is a serious question to be tried with respect to caveators’ claimed interests – whether balance of convenience favours continuation of the caveats – whether withdrawal of caveats should occur subject to a condition that the purchaser pay into Court the difference between the contract price and the market value of the property – held that caveats should be withdrawn subject to such a condition

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

Cases Cited:
Bayblu Holdings Pty Ltd v Capital Finance Australia Ltd (2011) 15 BPR 29,055; [2011] NSWCA 39
Buchanan v Crown & Gleeson Business Finance Pty Ltd (2006) 13 BPR 24,513; [2006] NSWSC 1465
Hanson Construction Materials Pty Ltd v Roberts (2016) 93 NSWLR 1; [2016] NSWCA 240
Sutherland v Vale (2008) 14 BPR 26,255; [2008] NSWSC 759

Category: Principal judgment
Parties: Mary Kitanovski (Plaintiff)
Fadi Ibrahim (First Defendant)
Jamelie Josephine Joan Lahood (Second Defendant)
Commissioner of Taxation (Third Defendant)
Representation:
Counsel:
Mr D W Robertson (Plaintiff)
Mr P Horobin (First Defendant)
Mr M J Smith (Third Defendant)
Solicitors:
Holding Redlich (Plaintiff)
Concordia Legal (First Defendant)
Craddock Murray Neumann Lawyers (Third Defendant)

File Number(s): 2021/30820
Publication restriction: None

Judgment

Introduction

These proceedings concern a residential property in Yarraga Place, Yowie Bay, being the land contained in folio identifiers 27/219700 and 28/219700.
By an Amended Summons filed on 13 August 2021, the plaintiff, Ms Mary Kitanovski, seeks orders in the nature of specific performance in respect of a contract for sale of the land she entered into as purchaser with the second defendant, Ms Jamelie Lahood, as vendor. The contract was entered into on 8 November 2019 for a purchase price of $2,805,000.
Ms Lahood was served with the Summons shortly after the commencement of the proceedings in February 2021. She has not filed a notice of appearance, and has not sought to participate in the proceedings as a party. However, it is clear (including from an affidavit she made on 17 September 2021 which was filed by the plaintiff) that Ms Lahood is aware of the proceedings and that Ms Kitanovski is seeking specific performance of 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.

Continue reading Kitanovski v Ibrahim

Details

AGLC: Kitanovski v Ibrahim [2022] NSWSC 1232
Case: [2022] NSWSC 1232
Decision Date: 14 September 2022

CaseChat Overview and Summary

Kitanovski v Ibrahim is a case involving a dispute over the withdrawal of caveats preventing the completion of a specifically enforceable contract for the sale of land. The case was heard in the New South Wales Supreme Court. The primary issue before the court was whether the caveats should be withdrawn under section 74MA of the Real Property Act 1900 (NSW). This required the court to determine whether there was a serious question to be tried regarding the caveators' claimed interests and whether the balance of convenience favoured the continuation of the caveats. Additionally, the court had to consider whether the withdrawal of the caveats should be subject to a condition that the purchaser pay the difference between the contract price and the market value of the property into court.

The court considered the contract price to be well below the market value of the property, and it was argued that the completion of the contract at the listed price would prejudice the caveators' claimed charges over the vendor's land. The court noted that the law requires a high threshold to be met for the withdrawal of a caveat, but it also recognised the importance of enforcing contracts for the sale of land where the contract terms are clear and specifically enforceable. The court concluded that there was a serious question to be tried with respect to the caveators' claimed interests and that the balance of convenience did not favour the continuation of the caveats. However, the court also recognised that the withdrawal of the caveats should be subject to a condition that the purchaser pay the difference between the contract price and the market value of the property into court.

The court ultimately held that the caveats should be withdrawn subject to the condition that the purchaser pay the difference between the contract price and the market value of the property into court. This decision ensures that the purchaser is not unfairly disadvantaged by the caveators' claims while also protecting the caveators' interests by requiring the purchaser to pay the difference into court. The court's decision balances the interests of both parties and ensures that the law is applied fairly and justly in this case. The final orders of the court were that the caveats be withdrawn subject to the condition that the purchaser pay the difference between the contract price and the market value of the property into court.

Orders