Kollias v Monzo Pty Ltd

[2004] NSWSC 334

CITATION:	Kollias v Monzo Pty Ltd [2004] NSWSC 334
HEARING DATE(S):	16 April, 2004
JUDGMENT DATE:	16 April 2004
JURISDICTION:	Equity Division
JUDGMENT OF:	Palmer J
DECISION:	Declaration that Plaintiff has no caveatable interest.
CATCHWORDS:	REAL PROPERTY - CAVEATS - whether work done on premises by tenant gave rise to a caveatable interest.
PARTIES :	Golfinos Kollias - Plaintiff Monzo Pty Limited - Defendant
FILE NUMBER(S):	SC 3725/02
COUNSEL:	T. Orlizki (Sol) - Plaintiff A. Juliano - Defendant
SOLICITORS:	Norman Waterhouse - Plaintiff Nescis Lawyers - Defendant

Ex tempore

Motions

1    From the court file it appears that these proceedings were dismissed on 28 November 2002 under Pt 13 r5A for want of an appearance by either party when the matter was listed for directions. It seems that non-appearance by both parties was due to inadvertence. In those circumstances, it is appropriate, in my view, to exercise the power of the Court under Pt 40 r9(3) to set aside the order dismissing the proceedings which was made on the 28 November 2002. 2    Accordingly, the Notices of Motion filed on behalf of the Defendant may be entertained in these proceedings. 3    There is a Motion filed by the Defendant on 22 March 2004 returnable on 23 April 2004 wherein the Defendant seeks a declaration that the Plaintiff does not have a caveatable interest in the subject property and, further, seeks an order that that caveat be removed. There is a further Notice of Motion filed on 1 April 2004 seeking that the Notice of Motion returnable on 23 April be heard instead today. 4    Mr Orlizki appears for the Plaintiff/Respondent to the Motions. He very sensibly and pragmatically says that there would be no real advantage to his client in having the matter adjourned to a later date for hearing because of the risk of substantial damages to which his client may be exposed if it is held that he has no caveatable interest. Mr Orlizki is therefore prepared to proceed with the argument of the matter today. 5    Accordingly, I will make the order sought in the Notice of Motion filed on 1 April 2004, that is, I will take the matter out of the list for 23 April 2004 and I will hear the substantive application today.


Judgment on substantive application

6    By its Notice of Motion, the Defendant seeks a declaration that the Plaintiff does not have a caveatable interest in the Defendant’s property at Brighton-le-Sands, and an order that the caveat be removed. 7    The facts are straightforward. By a deed of assignment dated 19 July 2000, the Plaintiff and a Mr Doulgeris became the lessees of the subject property under a lease dated 24 November 1997 between the Defendant as lessor and European Enterprises Pty Ltd as lessee. The new lessees wished to use the property as a bar and restaurant. They commenced substantial renovations to the premises with the implied, if not the express, consent of the Defendant. Considerable difficulties were encountered by the Plaintiff in obtaining Council approval for the intended use of the property and the bar and restaurant business conducted in the property remained closed for a substantial time. The Plaintiff admits that no rent was paid under the lease while the renovations were being carried out and while the business was closed. 8    On 12 November 2001, the Defendant terminated the lease for non-payment of rent and the Plaintiff and Mr Doulgeris thereafter gave vacant possession of the property to the Defendant. The Plaintiff and Mr Doulgeris have not made any claim that the lease was invalidly terminated, nor have they sought relief against forfeiture. 9    On 19 June 2002, the Plaintiff caused to be lodged against the title to the property a caveat claiming an estate or interest in the following terms:
“Legal and equitable interest in the lease estate and chattels and fixtures.”

The estate or interest was said to arise by virtue of the following facts:
“I was a tenant from 16.7.2000 and evicted in November 2001. I have an interest in leasehold and chattels and fixtures.”
10    Mr Orlizki submits that these facts give rise to an equitable interest in the property, the value of which is the value of improvements carried out by the Plaintiff and Mr Doulgeris to the property. He does not explain upon what principle of equity this interest is said to arise and I myself can discern none. As I have said, no claim is made that the lease was invalidly terminated. Indeed, the Plaintiff seems to have accepted that the lease had been validly terminated when he gave vacant possession of the property in November 2001, more than six months before he caused the caveat to be lodged. 11    Mr Orlizki has made some reference in his submission to unjust enrichment, without great elaboration. However, the interest claimed in the caveat, as explained in the facts and circumstances set out in the caveat, makes no reference whatsoever to unjust enrichment. What is claimed is solely a legal and equitable interest in the lease estate and the chattels without any explanation as to how those interests arise. 12    In my view, the Plaintiff has established no caveatable interest in the property. Accordingly, I make a declaration in terms of paragraph 2 of the Defendant's Notice of Motion filed on 22 March 2004. I order that the Plaintiff cause to be withdrawn forthwith from the title of the land known as 269 Bay Street, Brighton-le-sands, caveat number 8688461. 13    The Plaintiff’s Summons is dismissed. 14    I order that the Plaintiff pay the Defendant's costs of the proceedings. 15    Exhibits may be returned. 16    I direct that the orders which I have made be passed and entered forthwith.
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Last Modified: 04/28/2004