Oxygen Funding Solutions Pty Ltd v Dick-Telfar - [2020] NSWSC 1154

Supreme Court

New South Wales

Medium Neutral Citation: Oxygen Funding Solutions Pty Ltd and Ors v Dick-Telfar and Anor [2020] NSWSC 1154
Hearing dates: 18 and 21 August 2020
Date of orders: 18 and 21 August 2020
Decision date: 28 August 2020
Jurisdiction: Common Law
Before: N Adams J
Decision:
See [2] and [3]

Catchwords:
REAL PROPERTY – caveats – removal of caveats – previous possession proceedings after mortgage default – caveats lodged by defaultors and family members – requirement for a caveatable interest – balance of convenience

Legislation Cited:
Real Property Act 1900 (NSW), s 74H(5)(g), s 74MA, s 74 P

Cases Cited:
Bayblu Holdings Pty Limited v Capital Finance Australia Limited [2011] NSWCA 39
Catalyst Provisional Lending Pty Limited and Ors v Dick-Telfar and Anor [2020] NSWSC 79
Catalyst Provisional Lending Pty Ltd v Dick-Telfar [2020] NSWSC 324.
Hanson Construction Materials v Vimwise Civil Engineering (2006) NSW ConvR 56-137; [2005] NSWSC 880
Oxygen Funding Solutions Pty Ltd v Dick-Telfar [2020] NSWSC 582
Sinclair v Hope Investments Pty Ltd [1982] 2 NSWLR 87

Category: Procedural and other rulings
Parties:
Oxygen Funding Solutions Pty Ltd (First Plaintiff/Applicant)
Catalyst Provisional Lending Pty Ltd (Second Plaintiff/Applicant)
John Ramsay (Third Plaintiff/Applicant)

First Notice of Motion

Robert William James Dick-Telfar (First Defendant) (Self-Represented)
Kristin Lorna Cashman Venae-Telfar (Second Defendant) (Self-Represented)

Second Notice of Motion
Denisse Ann Cashman (First Respondent) (Self-Represented)
Roy James Cashman (Second Respondent) (Self-Represented)
Coral Therese Webber (Third Respondent) (Self-Represented)
Representation:
Counsel:
D Edney (Plaintiffs)
Solicitors:
Summer Lawyers (Plaintiffs)

File Number(s): 2018/00315828

Judgment

By Notice of Motion filed on 13 August 2020, the plaintiffs, Oxygen Funding Solutions Pty Ltd, Catalyst Provisional Lending and Mr John Ramsay (“the Lenders”), sought an order pursuant to s 74MA of the Real Property Act1900 (NSW) that the defendants, Robert William James Dick-Telfar and Kristin Lorna Cashman Venae-Telfar (“the borrowers”), withdraw caveat AG234103 as lodged in respect of folio identifier 19/12/31637, being the land situated at and known as 164-164A Prince Edward Street, Malabar in the state of New South Wales (“the Malabar property”) by Monday 17 August 2020.
This Motion came on for hearing before me in my capacity as Duty Judge on Tuesday, 18 August 2020. At the end of the hearing, I made the following orders:

An order pursuant to section 74MA of the Real Property Act 1900 (NSW) that the defendants withdraw caveat AQ234103 as lodged in respect of folio identifier 19/12/1637 being the land situated at and known as 164-164A Prince Edward Street, Malabar in the State of New South Wales by 4pm on Tuesday, 18 August 2020.

No order as to costs.

By Notice of Notion filed on 20 August 2020, the Lenders sought further orders pursuant to s 74MA of the Real Property Act that Denisse Ann Cashman and Roy James Cashman withdraw caveat AQ329887 in respect of the Malabar property by 5pm on Friday, 21 August 2020 and that Coral Therese Webber withdraw caveat AQ329888 in respect of the Malabar property by 5pm on Friday, 21 August…

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 1154
Decision Date: 28 August 2020

CaseChat Overview and Summary

The case before the court was between Oxygen Funding Solutions Pty Ltd and Dick-Telfar, concerning the removal of caveats from certain real property. The dispute arose after Dick-Telfar defaulted on a mortgage held by Oxygen Funding Solutions, leading to the lodging of caveats by Dick-Telfar and his family members to prevent the property from being sold. The court was tasked with determining whether these caveats could be removed and whether the balance of convenience favoured the removal.

The primary legal issue was whether the caveats lodged by Dick-Telfar and his family members were valid and could be sustained. The court had to consider the requirement for a caveatable interest, which necessitates that the person lodging the caveat must have an interest in the property that is capable of being protected by a caveat. The court also needed to assess the balance of convenience to determine whether the removal of the caveats would cause more injustice than it would prevent.

The court held that the caveats were not supported by a proper caveatable interest. The family members who lodged the caveats did not have any interest in the property, and their actions were seen as an attempt to interfere with the mortgagee's rights. Furthermore, the court found that the balance of convenience favoured the removal of the caveats, as the mortgagee had a legitimate interest in securing its debt through the sale of the property. Consequently, the court ordered the caveats to be removed, allowing the mortgagee to proceed with the sale of the property.

Orders