Makaritis v Makaritis - [2022] NSWSC 468

Supreme Court

New South Wales

Medium Neutral Citation: Makaritis v Makaritis [2022] NSWSC 468
Hearing dates: 8, 10, 25 February 2022
Date of orders: 8, 10, 25 February 2022
Decision date: 21 April 2022
Jurisdiction: Equity
Before: Parker J
Decision:
See [69]-[71]

Catchwords:
EQUITY – application by occupier of property for stay of owner’s possession proceedings – prima facie case – proprietary estoppel – joint endeavour constructive trust – balance of convenience – application refused and leave granted to issue writ of possession – further application for stay of writ of possession – repeated interlocutory application – stay refused but leave to caveat property granted

Legislation Cited:
Australian Consumer Law, ss 60, 61 and 267
Legal Aid Commission Act 1979, s 47
Real Property Act 1900, ss 74F, 74O

Cases Cited:
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Baumgartner v Baumgartner (1987) 164 CLR 137
Muschinski v Dodds (1985) 160 CLR 583
Nominal Defendant v Manning (2000) 50 NSWLR 139

Category: Procedural rulings
Parties:
Motion filed 28 January 2022
Bill Makaritis (Applicant/Cross-Defendant)
Hellenic Property Holdings Pty Limited (Respondent/Cross-Claimant)

Motion filed 10 February 2022
Hellenic Property Holdings Pty Limited (Applicant/Cross-Claimant)
Bill Makaritis (Respondent/Cross-Defendant)
Motion filed 21 February 2022
Bill Makaritis (Applicant/Cross-Defendant)
Luke Makaritis (First Respondent/First Defendant)
Hellenic Property Holdings Pty Limited (Second Respondent/Second Defendant/Cross-Claimant)
Representation:
Motion filed 28 January 2022
Counsel:
B Zipser (Applicant)
M Condon SC/SR Doupe (Respondent)

Solicitors:
Cogent Lawyers (Applicant)

Motion filed 10 February 2022
Counsel:
M Condon SC/SR Doupe (Applicant)
B Zipser (Respondent)

Solicitors:
Cogent Lawyers (Respondent)

Motion filed 21 February 2022
Counsel:
B Zipser (Applicant)
M Condon SC/SR Doupe (Respondents)
Solicitors:
Cogent Lawyers (Applicant)

File Number(s): 2020/221695
Publication restriction: Nil

Judgment

On 8 February I heard an application by the occupier of a property for an injunction to restrain the owner of the property (a company) from enforcing its right to possession. I dismissed the application. On 10 February I went on to make an order for possession in the owner’s favour. On 25 February I granted leave to the occupier to lodge a caveat over the property but dismissed his application to stay the possession order. This judgment sets out the reasons for my decisions.
The dispute about the property is an inter-family one. Without intending any disrespect, I will refer to the individuals who come into this judgment by their given names.
The property the subject of the proceedings is a house at Maryland which is a north-western suburb of Newcastle. The property is registered in the name of the second defendant, and cross-claimant, Hellenic Property Holdings Pty Limited (“HPH”). It is occupied by, and was formerly registered in the name of, the plaintiff and cross-defendant, Mr Bill Makaritis (“Bill”).
HPH holds the property as trustee of a discretionary trust for the benefit of Mr Bill Makaritis and his family. HPH is controlled by Mr Bill Makaritis’ son, Mr Luke William Makaritis (“Luke”), who is the first defendant. Luke is a solicitor and it was…

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 Makaritis v Makaritis

Details

AGLC: Makaritis v Makaritis [2022] NSWSC 468
Case: [2022] NSWSC 468
Decision Date: 21 April 2022

CaseChat Overview and Summary

In Makaritis v Makaritis, the applicant sought a stay of the respondent's possession proceedings over a property. The applicant claimed that they had a proprietary estoppel and a joint endeavour constructive trust over the property. The application was brought before the Supreme Court of New South Wales. The applicant argued that they had a prima facie case for proprietary estoppel and a joint endeavour constructive trust, which would entitle them to a stay of the respondent's possession proceedings.

The legal issues before the court were whether the applicant had established a prima facie case for proprietary estoppel and a joint endeavour constructive trust, and whether the balance of convenience favoured a stay of the respondent's possession proceedings. The court considered the evidence presented by both parties and determined that the applicant had not established a prima facie case for proprietary estoppel or a joint endeavour constructive trust. The court also found that the balance of convenience did not favour a stay of the respondent's possession proceedings. The court refused the application for a stay and granted leave to the respondent to issue a writ of possession.

The applicant subsequently made a further application for a stay of the writ of possession. The court found that the application was repeated interlocutory and refused to grant a stay. However, the court granted leave to the applicant to caveat the property. This decision highlights the importance of establishing a prima facie case for proprietary estoppel and a joint endeavour constructive trust, as well as the balance of convenience in determining whether to grant a stay of possession proceedings.

Orders