Perpetual Nominees Limited v Karamakis - [2010] NSWSC 1041

CITATION: Perpetual Nominees Limited v Karamakis and Ors [2010] NSWSC 1041

HEARING DATE(S): 2 September 2010

JUDGMENT DATE :
15 September 2010

JUDGMENT OF: Schmidt J

DECISION: TAK's motion is dismissed.
TAK is ordered to withdraw its caveat within 7 days of the date of this judgment and to pay the plaintiff’s costs of the motions, as agreed or assessed.

CATCHWORDS: PROCEDURE - Supreme Court procedure - joinder application - joinder refused - order staying eviction refused - REAL PROPERTY - torrens title - caveats against dealings - application for extension of caveat - no equitable interest established - no basis for an extension - whether caveat should be removed - section 74MA of the Real Property Act 1900 - order for caveat to be withdrawn - COSTS - whether there should be a departure from general rule - indemnity costs order sought - no basis for any departure from usual order - costs as agreed or assessed

LEGISLATION CITED: Conveyancing Act 1919
Real Property Act 1900
Retail Leases Act 1994
Uniform Civil Procedure Rules 2005

CATEGORY: Procedural and other rulings

CASES CITED: Alliance Acceptance Co Ltd v Ellison (1986) 5 NSWLR 102
Chetcuti v Scarf [2000] NSWSC 637
Dolroy Pty Ltd v Civilco Constructions Pty Ltd [2007] NSWSC 1263
Grey v Zaratell Pty Ltd [2004] WASC 129
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 73
Piazza Grande Pty Ltd v Portis Pty Ltd (1993) V ConvR 54-460
Sutherland v Vale [2008] NSWSC 759

TEXTS CITED: Equity Doctrine & Remedies 4th Edition at [17-100] - [17-105])

PARTIES: Perpetual Nominees Limited - Plaintiff
Steve Karamakis - First Defendant
Arris Karamakis (also known as Iris Karamakis) - Second Defendant
Karamakis Pty Ltd - Third Defendant

FILE NUMBER(S): SC 2010/152356

COUNSEL: Ms L Young - Plaintiff
Mr R Licardy, solicitor - TAK Australia Pty Limited

SOLICITORS: Gadens Lawyers - Plaintiff
Licardy & Co - TAK Australia Pty Limited

LOWER COURT JURISDICTION:

- 9 -

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

SCHMIDT J

WEDNESDAY, 15 SEPTEMBER 2010

2010/152356 PERPETUAL NOMINEES LIMITED v KARAMAKIS AND ORS

JUDGMENT

1 HER HONOUR: By statement of claim filed in June 2010 the plaintiff sought possession of property situated at Marrickville and judgment in the sum of $893,236.99 plus interest, for mortgage default. The claim was not defended and on 2 September default judgment was entered, granting the plaintiff possession and entering judgment for the sum of $924,655.07.

2 By motion filed on 19 August, TAK Australia Pty Ltd (‘TAK’), sought orders joining it as fourth defendant in the proceedings; that it be granted a stay of any eviction orders granted by the Court; and that a caveat which it had lodged over the land be extended for a period of two months. A lapsing notice had been issued at the plaintiff’s request under the Real Property Act 1900, in respect of the caveat. By motion filed on 27 August 2010, the plaintiff sought orders that the 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.

Keep reading for free

Create a free CaseChat account to read Perpetual Nominees Limited v Karamakis and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] NSWSC 1041
Decision Date: 15 September 2010

CaseChat Overview and Summary

The case of Perpetual Nominees Limited versus Karamakis was brought before the Supreme Court. The plaintiff, Perpetual Nominees Limited, sought to join a third party, Mr Karamakis, to the proceeding in order to address a dispute over a property transaction. The defendant, Mr Karamakis, opposed this joinder and also sought an extension of a caveat he had lodged against dealings with the property in question. Additionally, the plaintiff sought an order to stay an eviction of the defendant from the property, which was also opposed by the defendant. The court was required to decide on the propriety of the joinder application, the extension of the caveat, and the stay of eviction, as well as the appropriate costs order in the proceeding.

The court found that the plaintiff had not established a sufficient basis for joining Mr Karamakis to the proceeding. The court held that the plaintiff's application for an extension of the caveat was also without merit as Mr Karamakis had not demonstrated the existence of an equitable interest in the property. Furthermore, the court dismissed the application to stay the eviction, finding that there was no valid basis for such an order. The court also ruled that there was no valid reason to depart from the usual order for costs, and thus denied the plaintiff's request for an indemnity costs order.

The court ordered that the caveat lodged by Mr Karamakis be withdrawn, as there was no basis for its continued existence. The court further ordered that the costs of the proceeding be determined as agreed between the parties or, in the absence of an agreement, assessed by the court. The court did not make any orders for the joinder of Mr Karamakis to the proceeding, nor did it make any orders staying the eviction of Mr Karamakis from the property. This decision provides guidance on the requirements for joinder applications, the extension of caveats, and the circumstances in which a stay of eviction may be granted. It also affirms the principle that costs orders should generally follow the usual course unless there is a valid reason to depart from that course.

Orders