Markovsky v Teplitsky

[2022] NSWCA 228

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Markovsky v Teplitsky [2022] NSWCA 228

Hearing dates:

7 November 2022

Date of orders:

09 November 2022

Decision date:

09 November 2022

Before:

Macfarlan JA

Decision:

Dismiss Ms Markovsky’s notice of motion filed on 27 October 2022, with costs.

Catchwords:

REAL PROPERTY — application to extend operation of caveats — s 74K Real Property Act 1900 (NSW) — no reasonable basis for existence of interest claimed in caveats — no alternative arguable interest suggested

Legislation Cited:

Real Property Act 1900 (NSW), s 74K

Supreme Court Act 1970 (NSW), s 31(3)

Cases Cited:

Tadrous v Tadrous [2009] NSWSC 407

Category:

Procedural rulings

Parties:

Lynelle Markovsky (Applicant/Appellant)
Michael Teplitsky (First Respondent)
Zone Developments Pty Limited (Second Respondent)
Spring Street Property Group Pty Limited (Third Respondent)

Representation:

Counsel:
S Epstein SC/ G Tsang (Applicant)
M Cairns (Respondents)

Solicitors:
Baron + Associates (Appellant)
Equium Lawyers (Respondents)

File Number(s):

2022/289340

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division

Citation:

[2022] NSWSC 1164

Date of Decision:

31 August 2022

Before:

Stevenson J

File Number(s):

2022/135582

JUDGMENT

1. MACFARLAN JA: This is an application by Ms Markovsky as executor of the estate of her late husband, Mr Boris Markovsky, for an order under section 74K of the Real Property Act 1900 (NSW) extending the operation of four caveats relating to properties in which Mr Markovsky and Mr Michael Teplitsky, and related companies, had or claimed interests. Generally, such an application would be made in the Equity Division but as it was said to be made for the purposes of preserving rights pending an appeal to this Court, and was made by notice of motion filed in this Court, I elected to deal with it (see section 31(3) of the Supreme Court Act 1970 (NSW)).

2. The appeal proceedings relate to a deed dated 18 May 2018 (“the Deed”) to which Mr Markovsky and Mr Tiplitsky, and companies associated with them, were parties. In proceedings in the Equity Division brought by Ms Markovsky as executor, Ms Markovsky sought a declaration that the Deed is valid and binding and orders that certain shareholdings and properties referred to in the Deed be transferred to her, as executor of Mr Markovsky’s estate.

3. In his judgment of 31 August 2022, Stevenson J was careful to confine his decision and observations to the limited case advanced by Ms Markovsky ([2022] NSWSC 1164). That led his Honour to declare that the Deed is valid and binding but otherwise to dismiss her summons on the basis that the Deed does not require the transfers of shares and properties that she sought. As Ms Markovsky’s case was limited to that contention, his Honour refrained from expressing a view as to what, if any, other rights might arise out of the Deed (see [21]–[23]).

4. For detailed reasons that his Honour gave, his Honour concluded that the Deed contemplates a continuing relationship between the parties and not, as contended by Ms Markovsky, severance of the parties’ interests by the transfer of shares and properties to one or the other of Mr Markovsky’s estate and Mr Teplitsky, or their companies. Although my consideration of this issue has necessarily been limited by reason of the nature of the application before me, his Honour’s conclusion appears to me to be clearly correct, with the consequence that Ms Markovsky’s prospects of succeeding on appeal are in my view poor.

5. There are four caveats in question, with each relating to a number of properties. The interest claimed in three of them is “Charge” and in one an “Estate in Fee Simple”. In each case the interest is claimed to arise out of the Deed. The terms of the Deed do not however indicate any intent to create a charge in favour of Mr Markovsky’s interests, nor, at least so far as the explicit language of the Deed is concerned, an “Estate in Fee Simple” in their favour.

6. In Ms Markovsky’s written submissions, she acknowledged that the validity of the caveats had not been raised before nor addressed by Stevenson J and continued:

“It is acknowledged however, that if Justice Stevenson’s decision as to the operation of the Deed is correct, a corollary is that the proprietary interest which the caveats assert is non-existent.”

7. The position thus adopted was reliance solely on the type of interest contended for before his Honour, that is, a right to transfers of shares and properties. As there does not appear to me to have been any reasonable basis for that contention, Ms Markovsky’s position is that she has not identified any reasonable basis for the existence of the interests claimed in the caveats.

8. Moreover, in oral submissions, Ms Markovsky’s senior counsel stated that he did not contend that the late Mr Markovsky had any interests of the types claimed in the caveats. He referred however to a decision of Brereton J (as his Honour then was) in Tadrous v Tadrous [2009] NSWSC 407 and submitted that Ms Markovsky could, and should, be given the opportunity to lodge fresh caveats claiming properly arguable interests. One difficulty with that submission is however that an alternative arguable interest was not able to be suggested. Presumably counsel had in mind the interest for which he contended before Stevenson J but, as I have said, I consider that Ms Markovsky has only poor prospects of having his Honour’s rejection of that contention reversed.

9. For these reasons, there is no proper basis to extend the operation of the caveats, with the result that I dismiss Ms Markovsky’s notice of motion filed on 27 October 2022, with costs.

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Decision last updated: 09 November 2022