CITATION: Perpetual Nominees Limited v Karamakis and Ors [2010] NSWSC 1041 HEARING DATE(S): 2 September 2010
JUDGMENT DATE :
15 September 2010JUDGMENT 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an extension - whether caveat should be removed - section 74MA of the Real Property Act 1900 - order for caveat to be withdrawn - COSTS - whether there should be a departure from general rule - indemnity costs order sought - no basis for any departure from usual order - costs as agreed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 2005CATEGORY: 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 759TEXTS 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 LimitedSOLICITORS: Gadens Lawyers - Plaintiff
Licardy & Co - TAK Australia Pty Limited
LOWER COURT JURISDICTION:
- IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
SCHMIDT J
WEDNESDAY, 15 SEPTEMBER 2010
JUDGMENT2010/152356 PERPETUAL NOMINEES LIMITED v KARAMAKIS AND ORS
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…
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- Case
- [2010] NSWSC 1041
- Decision Date
CaseChat Overview and Summary
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.
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