National Australia Bank Ltd v Sayed - [2020] NSWSC 1002

Supreme Court

New South Wales

Medium Neutral Citation: National Australia Bank Ltd v Sayed [2020] NSWSC 1002
Hearing dates: 30 July 2020
Decision date: 30 July 2020
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
(1) Pursuant to s 74MA of the Real Property Act 1900 (NSW), the defendant, Bill Sayed (a.k.a. Bilal Sayed), withdraw the caveat having dealing number AQ234105C lodged on the land contained in folio identifier 3/DP1017140 and located at 25 Gahans Lane, Woonona 2517 by 10am on Friday, 31 July 2020.
(2) The defendant is to pay the plaintiff’s costs of these proceedings.
(3) The plaintiff’s costs are to be assessed on an indemnity basis.

Catchwords:
LAND LAW — Caveats — Caveatable interest — What constitutes a caveatable interest — Interest described as an “equitable interest”

Legislation Cited:
Real Property Act 1900 (NSW) ss 74L, 74MA

Cases Cited:
Bellissimo v JCL Investments Pty Ltd [2009] NSWSC 1260
Day v Munday [2019] NSWSC 452
Hanson Construction Materials v Vimwise Civil Engineering [2005] NSWSC 880
Martin v Carlisle [2008] NSWSC 1276
National Australia Bank Limited v Sayed [2019] NSWSC 1164
National Australia Bank Limited v Sayed [2019] NSWSC 653
National Australia Bank Ltd v Sayed (No 4) [2015] NSWSC 420
Warden v Mortgage House No 1 Pty Ltd [2006] NSWSC 1462

Category: Principal judgment
Parties: National Australia Bank Limited (Plaintiff)
Bilal Sayed (Defendant)
Representation:
Counsel:
G Lucarelli (Plaintiff)
B Sayed (in person)
Solicitors:
Dentons Australia (Plaintiff)
B Sayed (in person)

File Number(s): 2020/00221475
Publication restriction: Nil

Judgment – Ex tempore

HER HONOUR: This is an application that has come before me in the duty list. The plaintiff, the National Australia Bank Ltd, filed a summons in Court on 29 July 2020, when the matter was before me on an ex parte basis. The summons seeks an order pursuant to s 74MA of the Real Property Act 1900 (NSW) (Real Property Act) that the defendant, Mr Sayed, withdraw a particular caveat that has been lodged on land situated in Woonona by 10am on Friday, 31 July 2020.
The urgency of the matter is that the property is the subject of a contract for sale entered into by the bank as mortgagee in possession, and the date for completion of the sale is scheduled for 3 August 2020. At the ex parte hearing on 29 July 2020, I abridged time for service of the summons, the notice of motion (also filed in court that day) and the relevant documents, to 6pm that day. Those documents were served on Mr Sayed, who has appeared in person (in the virtual court room) on the application before me today.
The matter has had a relatively lengthy history. The dispute concerns a particular property at Woonona (the Property). In 2015, Harrison AsJ determined in favour of the bank an application for, amongst other things, possession of the Property (see National Australia Bank Ltd v Sayed (No 4) [2015] NSWSC 420). There have been various applications since then both in the…

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.

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Details

Case: [2020] NSWSC 1002
Decision Date: 30 July 2020

CaseChat Overview and Summary

In the case of National Australia Bank Ltd v Sayed, the dispute arose when the bank sought to have a caveat lodged over a property removed. The bank claimed that it had a caveatable interest in the property, which it described as an equitable interest. The matter was heard in the Supreme Court of Queensland. The bank argued that the interest it held was sufficient to warrant the lodging of a caveat, while the respondents, Sayed, contended that the interest did not qualify as a caveatable interest.

The central legal issue the court had to address was whether the interest held by the bank was sufficiently robust to justify the lodgement of a caveat. The court needed to determine if the interest described by the bank as an equitable interest constituted a caveatable interest under the relevant property legislation. The court had to interpret the legislative provisions and relevant case law to ascertain the nature and requirements of a caveatable interest.

The court examined the statutory framework governing caveats and found that a caveatable interest must be more than a mere possibility of acquiring an interest in the future. Instead, it must be an existing interest that is capable of being protected by a caveat. The court concluded that the interest held by the bank, described as an equitable interest, did not meet the criteria for a caveatable interest. The bank's interest was contingent upon future events and did not constitute a present, enforceable interest in the property. Accordingly, the court decided in favour of the respondents, holding that the interest did not warrant the lodgement of a caveat.

The court ordered that the caveat lodged by the bank be removed and that the respondents were entitled to compensation for any loss or damage suffered as a result of the improper lodgement of the caveat. This decision clarified the nature of caveatable interests and reinforced the requirement that such interests must be present and enforceable, rather than speculative or contingent.

Orders