Nakad v Nakad - [2023] NSWSC 228

Supreme Court

New South Wales

Medium Neutral Citation: Nakad v Nakad [2023] NSWSC 228
Hearing dates: 10 March 2023
Date of orders: 10 March 2023
Decision date: 16 March 2023
Jurisdiction: Equity - Real Property List
Before: Peden J
Decision:
The Defendants’ Notice of Motion is dismissed with costs

Catchwords:
CIVIL PROCEDURE — Solicitor’s inter partes undertaking — Where parties engaged in discussions for the withdrawal of a caveat — Where solicitor gave pre-litigation undertaking for proceeds of sale to be kept in solicitor’s trust account pending outcome of proceedings in exchange for withdrawal — Whether undertaking could be varied by court order — Where the court has no power to vary the undertaking — Where supervisory jurisdiction not engaged

Legislation Cited:
Legal Profession Uniform Law 2014 (NSW) ss 264(1)-(2)

Cases Cited:
Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated (1981) 148 CLR 170
Atanaskovic v Birketu Pty Ltd – Supervisory Jurisdiction [2020] NSWSC 575
Bell v Hartnett Lawyers (No 3) [2022] NSWSC 1204
Damm v Coastwide Site Services Pty Ltd [2017] NSWSC 1361
Dyer v Chrysanthou (No 2) (Injunction) [2021] FCA 641
Ginger Development Enterprises Pty Ltd v Crown Developments Australia Pty Ltd [2003] NSWCA 296
Kallinicos v Hunt (2005) 64 NSWLR 561
Porter v Dyer [2022] FCAFC 116
Reid v Howard (1995) 184 CLR 1

Texts Cited:
Keith Mason, “The Inherent Jurisdiction of the Court” (1983) 57(8) Australian Law Journal 449

Category: Procedural rulings
Parties: Marie Nakad (Plaintiff/Respondent)
Joe Nakad (First Defendant/First Applicant)
Maria Nakad (Second Defendant/Second Applicant)
Representation:
Counsel:
P Wiggins (Plaintiff/Respondent)
D A Smallbone (Defendants/Applicants)
Solicitors:
Paramonte Legal (Plaintiff/Respondent)
RJI Solicitors (Defendants/Applicants)

File Number(s): 2022/338646
Publication restriction: Nil

Judgment

The Defendants are the applicants on a Notice of Motion filed 10 February 2023, in which they seek orders varying a pre-litigation undertaking given by their solicitor to the Plaintiff’s solicitor to hold in trust the proceeds of the sale (the Proceeds) of a property in Concord, New South Wales.
When the Motion was heard in the Real Property list on Friday 10 March 2023, I gave judgment dismissing the Defendants’ Notice of Motion and indicated that I would provide reasons later, which I do here.

Background

By Statement of Claim filed 11 November 2022, the Plaintiff, Marie Nakad, commenced proceedings against the Defendants, Joe and Maria Nakad, seeking a declaration that all the Proceeds are held for her on trust by the Defendants. The precise nature of that trust is not articulated in the Statement of Claim.
The Plaintiff was married to Sid Nakad, who died intestate in 2015. The Defendants are Sid’s biological children and the Plaintiff’s stepchildren.
In 1998, the Plaintiff and Sid purchased the property. The Plaintiff pleads that the Defendants were placed on title as joint tenants with Sid because of tax advice received. Upon Sid’s death the Defendants became the sole registered proprietors of the property.
The Plaintiff pleads that she and Sid agreed that the Defendants would hold their interest on trust for Sid and the Plaintiff.…

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 Nakad v Nakad

Details

AGLC: Nakad v Nakad [2023] NSWSC 228
Case: [2023] NSWSC 228
Decision Date: 16 March 2023

CaseChat Overview and Summary

In Nakad v Nakad, the dispute involved a dispute over a solicitor's inter partes undertaking in the context of proceedings for the withdrawal of a caveat. The case was heard in the Supreme Court of Queensland. The primary issue before the court was whether the court had the authority to vary a pre-litigation undertaking given by a solicitor, whereby the proceeds of sale were to be kept in a solicitor's trust account pending the outcome of proceedings in exchange for the withdrawal of a caveat. The second issue considered by the court was whether the supervisory jurisdiction of the court could be engaged to make such a variation.

The court held that it did not have the power to vary the undertaking as it was not a party to the agreement. The court emphasised that the undertaking was a private agreement between the parties, and the court did not have the authority to interfere with or vary the terms of that agreement. Furthermore, the court found that its supervisory jurisdiction was not engaged in this matter as the proceedings were not before the court. The court held that the undertaking was a contractual obligation between the parties and could not be varied by court order. Consequently, the court dismissed the application to vary the undertaking.

Orders