Pham v Mazen Zraika; Pham v Sebie (No. 4)

In Pham v Mazen Zraika; Pham v Sebie (No. 4), the plaintiffs sought orders under the Real Property Act to compel the withdrawal of caveats and to restrain the caveators from lodging further caveats. The defendants, Mazen Zraika and Sebie, had lodged caveats against the settlement of a contract for the sale of land which had been the subject of a specific performance order in May 2017. The contract for sale was made in October 2014 and settlement was scheduled before the Registrar in Equity on 11 April 2018. The defendants lodged a caveat on 4 April 2018, and the plaintiffs applied on 18 April 2018 for orders under section 74MA of the Real Property Act to have the caveat withdrawn and for orders under section 74O to restrain the defendants from lodging further caveats.

The court was required to decide whether it should exercise its discretion under section 74MA of the Real Property Act to order the withdrawal of the caveats. The court also had to determine whether there was a serious question to be tried and what the balance of convenience was. The court considered whether an order should be made restraining the defendants from lodging further caveats and whether the defendants should pay the plaintiffs’ costs on the indemnity basis.

The court found that the plaintiffs had made out a prima facie case for the relief sought and that the balance of convenience favoured the plaintiffs. The defendants’ contention that the plaintiffs had not acted with due diligence in proceeding with the sale was rejected. The court ordered that the caveats be withdrawn and that the defendants be restrained from lodging further caveats without the leave of the court. The court also ordered the defendants to pay the plaintiffs’ costs of the application on the indemnity basis.