Kristen Perry T/As Perry Legal v Fulvia Franceschi

[2011] NSWSC 744

Supreme Court

New South Wales

Medium Neutral Citation:	Kristen Perry T/As Perry Legal v Fulvia Franceschi [2011] NSWSC 744
Hearing dates:	7 July 2011
Decision date:	07 July 2011
Jurisdiction:	Equity Division - Duty List
Before:	Rein J
Decision:	Leave granted to the plaintiff pursuant to s 74O of the Real Property Act 1900 (NSW) to lodge a fresh caveat.
Catchwords:	REAL PROPERTY - where the plaintiff lodged a caveat over the defendant's property as security for monies payable by the defendant pursuant to a costs agreement - where that first caveat lapsed as the costs agreement was not stamped in accordance with statutory requirements - application by the plaintiff under s 74O of the Real Property Act 1900 (NSW) for leave to lodge a further caveat in identical terms as the first caveat - where the defendant refused to give an undertaking not to deal with the property prior to a final hearing on the validity of the plaintiff's charge over the property
Legislation Cited:	Real Property Act 1900 (NSW)
Category:	Interlocutory applications
Parties:	Kristen Perry t/as Perry Legal (plaintiff) Fulvia Franceschi (defendant)
Representation:	S Adair (plaintiff) S O'Brien (defendant) Perry Legal (plaintiff) McDonald Johnson Lawyers (defendant)
File Number(s):	SC 2011/187913

EX TEMPORE Judgment

1. The Court has before it today a notice of motion for leave to be granted under s 74O of the Real Property Act 1900 (NSW) for lodgment of a further caveat after an earlier caveat previously lodged has been withdrawn, set aside or lapsed.

1. The history of this matter is that a caveat, in the same terms as that which is now sought to be lodged, was lodged by the plaintiff pursuant to rights given to her under a costs agreement entered into by the plaintiff, as solicitor for the defendant, and pursuant to which a charge to lodge a caveat was granted to the plaintiff in respect of costs and disbursements payable by the defendant.

1. Invoices were issued by the plaintiff to the defendant and they were the subject of a costs assessment. The defendant sought to have that assessment reviewed by a Review Panel. The grounds for review of the defendant were rejected and the cost assessment became a judgment of the Local Court as did the Panel's Certificate of Determination of Costs which can be found as part of tab 3 of Exhibit KP-1 to the affidavit of Kristen Perry of 6 June 2011, which is Exhibit A on this application. The judgment of the Local Court effectively, can be found first at tab 4 in the amount of $20,162.10 and, secondly, tab 5, in the amount of $2027 in Exhibit A. The defendant had issued on her behalf a lapsing notice in relation to the caveat.

1. The matter came before Brereton J in this Court in June and, although his Honour's ex tempore reasons are not yet available, I am informed that ultimately, the only issue pressed at the hearing of the motion for extension of the caveat was the question of the plaintiff's failure to have the costs agreement stamped in accordance with the requirements of relevant legislation in this State. As the costs agreement had not been stamped, his Honour refused the plaintiff's application for an extension of the caveat and the caveat thereupon lapsed.

1. Following that decision the plaintiff arranged for stamping of the costs agreement, and there is evidence before me now in the plaintiff's affidavit of 22 June 2011, that stamping has occurred. The plaintiff now seeks to lodge a second caveat in identical terms to that which had previously been lodged.

1. There was set in place a timetable for the hearing of the plaintiff's claim for a declaration that she holds a valid charge over the property to secure the unpaid fees and an order that the property be sold.

1. The plaintiff sought assurances from the defendant, through her solicitor, that no action would be taken until the matter could be heard on a final basis in this Court. There is correspondence that has passed from the plaintiff to the defendant's solicitor and there was a letter from the defendant's solicitors, which is to be found as Annexure D to the affidavit of Ms Kristen Perry of 5 July 2011, in which McDonald Johnson Lawyers, solicitors for the defendant, advised that:

"...we are not aware of the property currently being on the market nor of our client having any intention to sell the property."

1. The plaintiff was willing to take no further action in relation to the caveat, but sought an undertaking from the defendant not to take any action in respect of the property the subject of the earlier caveat. That undertaking was not given and indeed by a letter dated 1 July 2011, McDonald Johnson Lawyers advised:

"...in the last few days we have received a request to provide Dalton Partners with a listing Contract and have done so.

We understand that our client is engaging Dalton partners to list the property for sale and are not sure what advertising campaign will be implemented."

The letter went on to confirm that McDonald Johnson Lawyers:

"...will inform [the plaintiff] of any developments in relation to the proposed sale of the property. In particular, we will let you know if a Purchaser is found and give you notice before any Contracts are exchanged."

There is also a reference to a possibility of an irrevocable authority being provided to the plaintiff, but no offer was made on behalf of the defendant in that respect.

1. Following that advice, the plaintiff understandably became concerned in relation to the intentions of the defendant, and has now brought these proceedings before the Court. The defendant, through his counsel Mr O'Brien, sought an adjournment of the proceedings today on the basis that the defendant wishes to put before the Court evidence, but he was unable to tell the Court what the evidence was. Mr O'Brien had no instructions to agree to even an interim injunction being given, and his client offered no undertakings that she would take no steps until such time as any further evidence could be put on to at least protect the plaintiff until that point in time.

1. In my view, the basis for leave being granted in this application is made out by the material and I think it is appropriate to make the order sought by the plaintiff. The defendant is to indicate within seven days on what basis it resists the final relief sought by the plaintiff. I make orders in accordance with the short minutes of order, initialled by me and dated today's date. I think it is appropriate that the defendant pay the plaintiff's costs. I direct that the orders I have just made be taken out forthwith.

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Decision last updated: 18 July 2011