Raulfs v Fishy Bite - [2008] NSWSC 1195

CITATION: Raulfs v Fishy Bite & Ors [2008] NSWSC 1195

HEARING DATE(S): 28/10/08 and 30/10/08

JUDGMENT DATE :
30 October 2008

JURISDICTION: Equity

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 30 October 2008

DECISION: Order that the plaintiff’s notice of motion filed on 17 October 2008 be dismissed.

CATCHWORDS: REAL PROPERTY – caveats – application for extension of a caveat – serious question to be tried that plaintiff has a beneficial interest in the property of which the third defendant is the registered proprietor – balance of convenience – undertaking by third defendant not to object to lodgement of a caveat on the title of another property owned by a company she controlled – extension refused - EQUITY – equitable rights and remedies – tracing – interlocutory application for the extension of a caveat – prima facie case that first defendant misapplied partnership funds – funds used to reduce a mortgage debt owed by second and third defendants – second and third defendants were volunteers – serious question to be tried whether plaintiff is subrogated to the position of the mortgagee in respect of the moneys used to reduce the mortgage debt and retains in personam rights against third defendant despite registration

LEGISLATION CITED: Property (Relationships) Act 1984 (NSW)
Real Property Act 1900 (NSW)

CASES CITED: Boscawen v Bajwa [1995] 4 All ER 769; [1996] 1 WLR 328
Butler v Rice [1910] 2 Ch 277
In re Diplock [1948] Ch 465
Chetwynd v Allen [1899] 1 Ch 353
Banque Financiere de la Cite v Parc (Battersea) Ltd [1999] AC 221
Westpac Banking Corporation v Adelaide Bank Limited [2005] NSWSC 517; (2005) 12 BPR 22,919; (2006) NSW ConvR 56-133
Canny Gabriel Castle Jackson Advertising Pty Ltd v Volume Sales (Finance) Pty Ltd (1974) 131 CLR 321
In re Fuller’s Contract [1933] Ch 652

TEXTS CITED: Jacobs’ Law of Trusts in Australia, 7th ed (2006)

PARTIES: Deborah Raulfs
v
Fishy Bite Pty Ltd & 2 Ors

FILE NUMBER(S): SC 4896/08

COUNSEL: Plaintiff: P O'Loughlin
3rd Defendant: R Harper SC with Ms K Dawson

SOLICITORS: Plaintiff: McLaughlin & Riordan Solicitors
3rd Defendant: n/a

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Thursday, 30 October 2008

4896/08 Deborah Raulfs v Fishy Bite Pty Ltd & 2 Ors

JUDGMENT

1 HIS HONOUR: This is an application for an order extending a caveat. The notice of motion also sought an injunction to restrain the third defendant from selling or otherwise dealing with a property known as 9 Pacific Street, Clovelly (“the Clovelly property”). The argument focused upon the application for an extension of the caveat. These reasons will dispose of both of the orders sought.

2 The caveat has been extended until today in order to deal with this application. In the caveat the plaintiff claims an interest as constructive trustee by reason of the following facts:

By reason of monies contributed by the Caveator as capital to a Partnership between her and Fishy Bite Pty Limited…

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.

Continue reading Raulfs v Fishy Bite

Details

AGLC: Raulfs v Fishy Bite [2008] NSWSC 1195
Case: [2008] NSWSC 1195
Decision Date: 30 October 2008

CaseChat Overview and Summary

In Raulfs v Fishy Bite, the plaintiff sought an extension of a caveat lodged over property owned by the third defendant. The plaintiff claimed to have a beneficial interest in the property, which was in dispute. The court was tasked with determining whether there was a serious question to be tried regarding the plaintiff's claim, and whether the balance of convenience favoured the plaintiff's application. The case also involved an interlocutory application for the extension of a caveat in relation to another property, owned by a company controlled by the third defendant.

The primary legal issues before the court were whether the plaintiff had established a serious question to be tried regarding their claim to a beneficial interest in the property, and whether the balance of convenience favoured the plaintiff's application for an extension of the caveat. The court also considered whether the plaintiff was subrogated to the position of the mortgagee in respect of the funds used to reduce a mortgage debt owed by the second and third defendants, and whether the plaintiff retained in personam rights against the third defendant despite the registration of the mortgage.

The court found that while the plaintiff had raised a serious question to be tried regarding their claim to a beneficial interest in the property, the balance of convenience did not favour the plaintiff's application for an extension of the caveat. The court was also satisfied that the third defendant had provided an undertaking not to object to the lodgement of a caveat on the title of the other property, and that this was sufficient to address the plaintiff's concerns in that regard. The court further found that the plaintiff was not subrogated to the position of the mortgagee in respect of the funds used to reduce the mortgage debt, and that the plaintiff's in personam rights against the third defendant were extinguished by the registration of the mortgage.

The court refused the plaintiff's application for an extension of the caveat and made no orders in relation to the interlocutory application. The court noted that the plaintiff was free to pursue their claims in the main proceedings.

Orders