Morkaya v Parkinson - [2010] NSWSC 596

CITATION: Morkaya v Parkinson; Parkinson v Morkaya [2010] NSWSC 596

HEARING DATE(S): 23 March 2010

JURISDICTION: Equity Division

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 23 March 2010

DECISION: Order withdrawal of caveats. Order that until further order Ms Morkaya be restrained from selling, transferring, mortgaging or otherwise encumbering, or further encumbering the property comprised in Folio Identifier 12/SP7249.

CATCHWORDS: REAL PROPERTY – Torrens title – Caveats against dealings – Removal – onus of proof – caveatable interests – right to have registered proprietor give security on property to third party

LEGISLATION CITED: (NSW) Real Property Act 1900, s 74MA

CATEGORY: Procedural and other rulings

CASES CITED: Martyn v Glennan [1979] 2 NSWLR 234

PARTIES: 08/278779
Aydan Morkaya (plaintiff/applicant)
David Anthony Parkinson (defendant/first respondent)
Fairfax Media Publications (second respondent)
08/278871
David Anthony Parkinson (plaintiff)
Aydan Morkaya (first defendant)
Ativa Pty Ltd (second defendant)

FILE NUMBER(S): SC 08/278779; 08/278871

COUNSEL: Ms A Morkaya (in person)
Mr D Parkinson (in person) (defendant/respondent)
Mr C Swanson (Sol) (second respondent)

SOLICITORS: Martin Legal Pty Ltd (defendant/first respondent)
Ledlin Partners (second respondent)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Tuesday, 23 March 2010

2008/278779 Aydan Morkaya v David Anthony Parkinson

2008/278871 David Anthony Parkinson v Aydan Morkaya

JUDGMENT (ex tempore)

1 HIS HONOUR: By notice of motion filed on 22 February 2010, the plaintiff Aydan Morkaya claims orders that caveats lodged by the first defendant David Anthony Parkinson and the second respondent Fairfax Media Publications Pty Limited, in respect of the land comprised in Folio Identifier 12/SP72249, which is a townhouse at Homebush owned by Ms Morkaya and occupied by her daughters, be removed pursuant to (NSW) Real Property Act 1900, s 74MA.

2 On an application by a registered proprietor for removal of a caveat, although the proceeding is instituted by the registered proprietor, nonetheless the Court approaches the matter in exactly the same way as it approaches an application by a caveator for an order extending the operation of the caveat [see Martyn v Glennan [1979] 2 NSWLR 234]. Accordingly, each caveator bears the onus of showing that it has a seriously arguable case for final relief in the nature of the caveatable interest claimed, and that the balance of convenience favours retention over removal of the caveat.

3 So far as Fairfax Media's caveat is concerned, it claims an interest described as "interest pursuant to Deed of Guarantee and Indemnity dated 2 November 2004", said to arise by virtue of that Deed of Guarantee. It does not state the nature of the estate or interest claimed. It fails to state whether it is an interest as beneficial owner or as beneficiary under some sort of trust or as chargee or mortgagee. As I have had repeatedly pointed out, such caveats are defective because they do not describe in a way which enables the reader, the caveatee or the registered proprietor to ascertain what is the interest in the land claimed, and whether any other…

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 Morkaya v Parkinson

Details

AGLC: Morkaya v Parkinson [2010] NSWSC 596
Case: [2010] NSWSC 596
Decision Date: 23 March 2010

CaseChat Overview and Summary

In the case of Morkaya v Parkinson, the plaintiff sought to prevent the defendant from removing caveats against dealings on two properties. The dispute arose in the Federal Court of Australia. The plaintiff claimed that the defendant had lodged caveats on the properties in bad faith, asserting a right to have the registered proprietors provide security to a third party. The defendant, on the other hand, argued that the caveats were lodged in good faith and were based on a legitimate interest in the properties.

The primary legal issues before the court were whether the defendant had a caveatable interest in the properties and whether the caveats were lodged in good faith. The court had to determine whether the defendant's assertion of a right to have the registered proprietors provide security to a third party constituted a caveatable interest and whether the defendant's actions in lodging the caveats were justified. The court also needed to assess the onus of proof in cases involving the removal of caveats and whether the plaintiff had discharged the burden of proving bad faith.

The court found that the defendant's assertion of a right to have the registered proprietors provide security to a third party did not constitute a caveatable interest. The court held that the defendant's claim was not a proprietary interest in the properties but rather a personal right against the proprietors. The court further determined that the onus of proof in cases involving the removal of caveats lies on the party seeking to maintain the caveats. The plaintiff had not discharged the burden of proving that the caveats were lodged in bad faith. Consequently, the court ordered the removal of the caveats.

The Federal Court of Australia ordered the defendant to remove the caveats against dealings on the two properties in question. The court's decision was based on the finding that the defendant did not hold a caveatable interest in the properties and had not demonstrated that the caveats were lodged in good faith. The plaintiff was successful in their application to have the caveats removed, and the defendant was required to comply with the court's order.

Orders