Perpetual Nominees Limited v Taouk - [2009] NSWSC 605

CITATION: Perpetual Nominees Limited v Taouk & Anor [2009] NSWSC 605

HEARING DATE(S): 09/06/2009

JUDGMENT DATE :
2 July 2009

JUDGMENT OF: Hoeben J

DECISION: Apart from orders 1-4 and 7-12 the orders of the Registrar made on 4 June 2009 are discharged. That part of the plaintiff's Notice of Motion relating to asset preservation orders and the extension of caveat AE111568 is dismissed. Plaintiff to pay Mr Taouk’s costs of the hearing before me on 9 June 2009.

CATCHWORDS: Real property - application to extend caveat - whether plaintiff has a caveatable interest - Injunction - freezing order - whether danger that if plaintiff succeeds it will not be able to have its judgment satisfied - adequacy of evidence.

LEGISLATION CITED: Real Property Act 1900
Uniform Civil Procedure Rules 2005

CATEGORY: Principal judgment

CASES CITED: Finn v Carelli [2007] NSWSC 261
Frigo v Culhaci (NSWCA 17 July 1998, unreported)
Newcastle City Council v Caverstock Group Pty Limited [2008] NSWCA 249
Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 at 321-322
Perpetual Nominees v Springfield Retail Pty Ltd [2009] NSWSC 188
Vaughan v Duncan [2007] NSWSC 811

PARTIES: Perpetual Nominees Limited - Plaintiff
Karam Elias Taouk - First Defendant
Jim George - Second Defendant

FILE NUMBER(S): SC 11740/2009

COUNSEL: Ms L Young - Plaintiff
Mr CN Bova - First Defendant

SOLICITORS: Bartier Perry - Plaintiff
Marque Lawyers - First Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Thursday 2 July 2009

11740/2009 – PERPETUAL NOMINEES LIMITED v Karam Elias TAOUK & Anor
JUDGMENT

1 HIS HONOUR:

Nature of proceedings

2 In the principal proceedings, the plaintiff alleges that it loaned in excess of $5.1 million dollars to Solid Holdings Pty Limited (“Solid”). The loan was secured by a mortgage, charges and deeds of guarantee. The first defendant, Karam Elias Taouk, and the second defendant, Jim George, were the guarantors. Solid defaulted in its obligations under the loan agreement and is currently in liquidation. The plaintiff claims from the defendants as principals under their guarantees the amount of the loan and outstanding interest payments.

3 On 4 June 2009 the plaintiff by way of a Notice of Motion made an ex parte application to the Registrar of the Court. It sought an order that caveat AE111568, lodged over property at 28 Water Street, Belfield NSW (the Belfield property), be extended until further order of the Court. It sought an asset preservation order (a “freezing order”) in respect of the assets of the defendants to the value of $5,600,000. It also sought orders for substituted service on Mr Taouk by service on his solicitors. The Registrar made those orders. The matter came before me as Duty Judge for the continuation of the orders made by the Registrar. Mr Taouk does not challenge the orders for substituted service but opposes the extension of the other orders.

4 After the Registrar had…

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: [2009] NSWSC 605
Decision Date: 2 July 2009

CaseChat Overview and Summary

Perpetual Nominees Limited filed an application to extend a caveat against the registration of a transfer of title in a property held by Taouk. The dispute before the court involved the determination of whether Perpetual Nominees had a caveatable interest in the property and the issuance of an injunction and freezing order. The court was tasked with deciding whether Perpetual Nominees had a caveatable interest in the property, and if so, whether the plaintiff was likely to succeed on the merits of the case, and whether there was a danger that if Perpetual Nominees succeeded, it would not be able to have its judgment satisfied.

The court considered the evidence provided by Perpetual Nominees and determined that it was not sufficient to establish a caveatable interest. The court found that the evidence did not demonstrate that Perpetual Nominees had a real and substantial contention with Taouk regarding the property. Furthermore, the court found that there was no danger that if Perpetual Nominees succeeded in the main proceedings, it would not be able to have its judgment satisfied. The court noted that the freezing order was not necessary to prevent the dissipation of assets as Perpetual Nominees had provided sufficient security for the costs of the proceedings.

As a result, the court dismissed the application to extend the caveat and did not grant the injunction or freezing order. The court found that Perpetual Nominees had not established a caveatable interest and that the evidence provided was inadequate. The court concluded that the application should be dismissed, and no orders were made in favour of Perpetual Nominees.

Orders