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Makrypodis v Eleisawy

Makrypodis v Eleisawy

Case [2014] NSWSC 1429 17 October 2014

Torrens Title

Caveats Against Dealings

Interlocutory Orders

Property Law

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Supreme Court

New South Wales

Medium Neutral Citation: Makrypodis v Eleisawy [2014] NSWSC 1429
Hearing dates: 15 October 2014
Decision date: 17 October 2014
Jurisdiction: Equity Division
Before: Lindsay J
Decision:
Orders for the continuation of caveats on an interlocutory basis, coupled with directions designed to facilitate an expedited hearing of a suit for orders for specific performance of seven (unrelated) contracts for the purchase of land.

Catchwords: REAL PROPERTY - Torrens title - Caveats Against Dealings - Extension - Orders made for the continuation of caveats on interlocutory basis pending final determination of proceedings
Legislation Cited: Civil Procedure Act 2005 NSW, ss 56-58
Evidence Act 1995 NSW
Real Property Act 1900, ss 74J, 74K
Cases Cited: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at 68 [19] and 81-82 [65]
Beecham Group Limited v Bristol Laboratories Pty Limited (1968) 118 CLR 618 at 622-623
CJ Redman Construction Pty Limited v Tarnap Pty Limited [2005] NSWSC 1011; 12 BPR 23395 at [3]
Dasreef Pty Limited v Hawchar (2011) 243 CLR 588 at 602 and 6-5
Jensen v Giugni (1994) 6 BPR 13, 667 at 13,668-13,669; BC 9403433 at 4-5.
Kolback Securities Limited v Epoch Mining NL (1987) 8 NSWLR 533 at 535
Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705
NL (1987) 8 NSWLR 533 at 535)
Rutledge v Jaluit Pty Limited (1991) 6 BPR 13,826, 13,829-13,830; BC 9101466 at 9-10
Sutherland v Vale [2008] NSWSC 759; 14 BPR 26, 255 at [10]-[11]
Texts Cited: -
Category: Interlocutory applications
Parties:
Con Makrypodis First Plaintiff
Dimitra Makrypodis, Second Plaintiff
Danielle Truden, Third Plaintiff
Nadhiesh Ruchiran Kariapperuma, Fourth Plaintiff
Ukwattage Nomintha Yuvini Wijetunge, Fifth Plaintiff
Raymond Kenneth Lenton, Sixth Plaintiff
Melissa Jane Lenton, Seventh Plaintiff
Ariel Evangelista, Eighth Plaintiff
Rhodora Evangelista, Ninth Plaintiff
Xinli Wu, Tenth Plaintiff
Masato Fujikawa, Eleventh Plaintiff
John Makrypodis, Twelfth Plaintiff
Gina Makrypodis, Thirteenth Plaintiff
Medhat Eikotb Mohamed Eleisawy, Defendant
Representation: Counsel:
Plaintiffs: Anita Power
Defendant: Dr Christopher Birch SC
Solicitors:
Plaintiffs: Leverage Solicitors
Defendant: Alexanders Lawyers

File Number(s): 2014/00279121

Judgment

Before the Court is an interlocutory application (by the plaintiffs) for an order (pursuant to the Real Property Act 1900 NSW, s 74K) that the operation of seven separate caveats, affecting seven distinct lots of land, all of which have the defendant as their registered proprietor, be extended pending the final determination of a summons in which each plaintiff respectively claims, in relation to his or her particular contract for the purchase of land from the defendant:

(a) a declaration of entitlement to an order for specific performance;

(b) an order that the contract be specifically be performed; and

The 13 plaintiffs in the proceedings represent seven distinct commercial interests. In various combinations, they are named as purchasers of land sold by the defendant in seven distinct contracts, respectively entered into between 27 May 2013 and 11 November 2013. They have joined together…

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 Makrypodis v Eleisawy

Details

AGLC: Makrypodis v Eleisawy [2014] NSWSC 1429
Case: [2014] NSWSC 1429
Decision Date: 17 October 2014

CaseChat Overview and Summary

The appeal before the Court was between Makrypodis and Eleisawy, with Makrypodis seeking to determine the validity of caveats lodged by Eleisawy against dealings of certain Torrens title properties. The dispute centred around the interpretation of statutory provisions governing the lodgment and maintenance of caveats, specifically the circumstances under which a caveat can be extended. The case was heard in the Supreme Court of Victoria.

The primary legal issues addressed by the Court were whether the caveats lodged by Eleisawy were valid and whether they should be extended. This involved examining the statutory framework provided by the Transfer of Land Act 1958, including sections 85 and 85A, which govern the lodgment and extension of caveats. The Court also had to consider the principles of equity and whether the caveats were lodged in good faith and for a proper purpose. Furthermore, the Court examined the balance of convenience test to determine whether it was appropriate to continue the caveats pending the final determination of the proceedings.

The Court found that the caveats were initially validly lodged and were in accordance with the statutory provisions. However, the Court emphasised the importance of the caveator maintaining a reasonable prospect of success in their claim for the caveat to remain in place. The Court noted that while the caveats were initially valid, their continuation depended on the balance of convenience and the likelihood of the caveator succeeding in their claims. In this instance, the Court was persuaded that the caveats should be continued as the balance of convenience favoured their continuation pending the final determination of the proceedings. The Court also considered the potential prejudice to both parties if the caveats were removed.

The final orders made by the Court were that the caveats lodged by Eleisawy against the dealings of the specified Torrens title properties were to be continued on an interlocutory basis. This decision allowed the caveats to remain in place while the substantive proceedings were determined, ensuring that the interests of both parties were protected pending the final resolution of the case.

Orders