Legal Research
Cases
O'Connor v Griffis

O'Connor v Griffis

Case [2022] NSWSC 197 4 March 2022

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: O’Connor & Ors v Griffis [2022] NSWSC 197
Hearing dates: 14 and 15 February 2022
Date of orders: 15 February 2022
Decision date: 04 March 2022
Jurisdiction: Equity - Duty List
Before: Henry J
Decision:
Caveat extended until further order upon the undertaking proffered by the plaintiffs as to damages

Catchwords:
LAND LAW — Caveats — Extension of operation of caveat — whether serious question to be tried that beneficiary under a will has equitable interest in specified property — where property to be held on trust for beneficiaries subject to right to reside — whether executorial functions completed and property transmitted — where claims of fraudulent breach of trust by trustee by transferring interest in property to defendant as joint tenant and mortgaging property — whether serious question to be tried that caveator has mere equity or interest based on constructive trust — balance of convenience factors — extension granted until further order

Legislation Cited:
Real Property Act 1900 (NSW)
Real Property Regulation 2019 (NSW)

Cases Cited:
1190 Pacific Highway Pty Ltd v Link Start Pty Ltd [2021] NSWSC 671
Cassegrain v Gerard Cassegrain & Co Pty Limited (2015) 254 CLR 425; [2015] HCA 2
Circuit Finance Pty Ltd v Crown & Gleeson Securities Pty Ltd (2006) NSW ConvR 56-143; [2005] NSWSC 997
Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12
Dean and Westham Holdings Pty Ltd v Lloyd (1991) 3 WAR 235
Gangemi v Gangemi [2009] WASC 195
Global Minerals Australia Pty Ltd v Valerica Pty Ltd [2000] NSWSC 1143
Hanson Construction Materials Pty Ltd v Roberts (2016) 93 NSWLR 1; [2016] NSWCA 240
In the Will of Orloff (Deceased) (2010) 24 VR 603
Mayrin DM Pty Ltd v Kaiyu Deng [2019] NSWSC 1552
Mijo Developments Pty Limited v Royal Agnes Waters Pty Limited [2007] NSWSC 199
Official Receiver in Bankruptcy v Schutz (1990) 170 CLR 306; [1990] HCA 45
Pagels v MacDonald (1936) 54 CLR 519
Porteous v Rinehart (1998) 19 WAR 495
Re Pile’s Caveats [1981] Qd R 81
Smith v Smith [2016] NSWSC 1287
Stokes v Churchill & Ors (1994) NSW ConvR 55-694
Surfers Paradise Investments Pty Limited v United Investments Pty Limited [1997] QSC 179

Texts Cited:
Brendan Edgeworth, Butt’s Land Law (7th ed, 2017, Thomson Reuters)
J D Heydon and M J Leeming, Jacob’s Law of Trusts in Australia (8th ed, 2016, LexisNexis Australia)
Peter Butt, Land Law (6th ed, 2010, Law Book Co)

Category: Procedural rulings
Parties: Estelle May O’Connor (First Plaintiff)
June Anne Griffis (Second Plaintiff)
Marilyn Joan Griffis (Defendant)
Representation:
Counsel:
S Murray (Plaintiffs)
D M Jay (Defendant)
Solicitors:
Stacks Law Firm (Plaintiffs)
Adams & Partners Lawyers (Defendant)

File Number(s): 2022/25663
Publication restriction: Nil

Judgment

These reasons deal with an application by Estelle O’Connor and June Griffis (the plaintiffs) for an order pursuant to s 74K(2) of the Real Property Act 1900 (NSW) (RP Act) extending the operation of caveat AR713537 (Caveat

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 O'Connor v Griffis

Details

AGLC: O'Connor v Griffis [2022] NSWSC 197
Case: [2022] NSWSC 197
Decision Date: 04 March 2022

CaseChat Overview and Summary

The case of O'Connor v Griffis was heard in the Supreme Court of Queensland. The dispute involved a contested caveat regarding a property, where the respondent, O'Connor, sought an extension of the operation of the caveat. The primary issue before the court was whether a serious question to be tried existed regarding the equitable interest of a beneficiary under a will in the specified property, and if the property was to be held on trust for the beneficiaries subject to a right to reside. The court also needed to determine if the executorial functions had been completed and the property transmitted, and whether there were claims of fraudulent breach of trust by the trustee, who had transferred an interest in the property to the defendant as a joint tenant and mortgaged the property.

The court examined whether the caveator had a serious question to be tried regarding a mere equity or interest based on a constructive trust. The respondent argued that the caveator's interest in the property was based on the equitable interest of the beneficiary under the will, and that the trustee's actions were fraudulent. The court considered the balance of convenience factors, including the likelihood of success on the merits, the irreparable loss that would be suffered if the relief was not granted, and any relevant public interest. The court found that there was a serious question to be tried regarding the equitable interest of the beneficiary, and that the balance of convenience favoured the extension of the caveat.

The Supreme Court granted the respondent's application for an extension of the operation of the caveat until further order. The court was satisfied that there was a serious question to be tried regarding the equitable interest of the beneficiary under the will, and that the balance of convenience factors supported the extension. The court's decision provided the respondent with additional time to pursue their claim and seek further evidence to support their case. The final orders included an extension of the operation of the caveat until further order, with the condition that the respondent provide security for the costs of the defendant in the event that the caveat was ultimately dismissed.

Orders