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Re Application of Sutherland and Arnautovic

Re Application of Sutherland and Arnautovic

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Case Copied 19 June 2014 60 min read

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Supreme Court

New South Wales

Medium Neutral Citation: In the application of Roderick Mackay Sutherland and Sule Arnautovic [2014] NSWSC 821
Hearing dates: 13 June, 4 November 2013
Decision date: 19 June 2014
Jurisdiction: Equity Division
Before: Kunc J
Decision:
First Applicant entitled to funds paid into court

Catchwords: EQUITY - Priority and notice - Competition between equitable interests in land - Whether failure to lodge caveat results in loss of priority
ESTOPPEL - Estoppel by deed
EVIDENCE - Alleged forged signature - Onus of proof - Role of expert opinion as to handwriting - Proof of handwriting generally
Legislation Cited: Bankruptcy Act 1966 (Cth)
Duties Act 1997 (NSW)
Evidence Act 1995 (NSW)
Family Law Act 1975 (Cth)
Stamp Duties Act 1920 (NSW)
Trustee Act 1925 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Arnautovic & Sutherland t/as Jirsch Sutherland & Co v Cvitanovic (as trustee for the bankrupt estate of Adrian Lawrence Rosee) [2011] FCA 809; (2011) 199 FCR 1
Australian Security and Investments Commission v Rich [2003] FamCA 1114; (2003) 31 FamLR 667
Barlin Investments Pty Ltd v Westpac Banking Corp [2012] NSWSC 699; (2012) 16 BPR 30,671
Caboche & Bond v Ramsay (1993) 119 ALR 215
Dabbs v Seaman (1925) 36 CLR 538
Damjanovic v York Agencies Pty Ltd [2003] NSWCA 222
Ellison v Vukicevic (1986) 7 NSWLR 104
Groves v Groves [2013] QSC 277
In the matter of C & L Cameron Pty Ltd - GB Gazzana v Nadalan Enterprises Pty Ltd; AF Gazzana v Nadalan Enterprises Pty Ltd [2012] NSWSC 676
J & H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546
Jeans v Cleary [2006] NSWSC 647
Lescap Group Pty Ltd v Pacific Resort Holdings Pty Ltd [2012] NSWSC 580
Official Trustee in Bankruptcy v D'Jamirze [1999] NSWSC 1249; (1999) 48 NSWLR 416
Penny Nominees Pty Ltd v Fountain (No 3) (1990-1991) NSW ConvR 55-561
Shepherd v Felt & Textiles of Australia Pty Ltd [1931] HCA 11; (1931) 45 CLR 359
Sumner v Booth [1974] 2 NSWLR 174
Theodore v Mistford Pty Ltd [2005] HCA 45; (2005) 221 CLR 612
Texts Cited: The Hon J.D. Heydon QC, Cross on Evidence Australian Edition (Looseleaf; LexisNexis)
Category: Principal judgment
Parties: Roderick Mackay Sutherland and Sule Arnautovic (Plaintiffs)
Reliance Financial Services (NSW) Pty Ltd ACN 131 778 666 ATF The Reliance Discretionary Trust (First Applicant)
David H Cohen t/a David H Cohen & Co (Second Applicant)
Hayley Vickers (Third Applicant)
Representation: Counsel: Mr M. Ashhurst SC and Mr A. Chee (First Applicant)
Mr C. Stomo (Second and Third Applicants)
Solicitors: Dib Lawyers (First Applicant)
David H Cohen & Co (Second and Third Applicants)

File Number(s): 2012/218414
Publication restriction: No

Judgment

Summary

The issue in these proceedings is who is entitled to a sum of $224,045.76 (the "Fund") which has been paid into Court by the plaintiffs.

The Third Applicant is Ms Hayley Vickers (as she now prefers to be known). Ms Vickers and…

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: [2014] NSWSC 821
Decision Date: 19 June 2014

CaseChat Overview and Summary

In the case of Re Application of Sutherland and Arnautovic, the dispute arose between the applicants, Sutherland and Arnautovic, and the respondents regarding the priority and notice of equitable interests in land. The matter was heard by the court, which was tasked with determining the legal issues concerning the priority of equitable interests and the impact of failing to lodge a caveat, as well as the applicability of estoppel by deed. Additionally, the court had to consider the role of expert opinion in proving handwriting and the burden of proof in relation to an alleged forged signature.

The primary legal issues before the court were whether the failure to lodge a caveat would result in the loss of priority for an equitable interest and whether estoppel by deed could be invoked in this context. Furthermore, the court had to assess the role of expert evidence in verifying the authenticity of a signature and the standard of proof required to establish the forgery of a signature. The applicants argued that their equitable interest should take priority, despite the absence of a caveat, while the respondents contended that the failure to lodge a caveat should result in the loss of priority.

The court found that the failure to lodge a caveat did not necessarily result in the loss of priority for an equitable interest, as other factors, such as notice, could be taken into account. The court held that estoppel by deed could apply in this situation, preventing a party from asserting rights that were inconsistent with a previous deed. In relation to the forged signature, the court emphasised that the burden of proof rested with the party alleging the forgery, and that expert opinion on handwriting could be relevant but not determinative. Ultimately, the court determined that the applicants' equitable interest did not lose priority due to the absence of a caveat and that estoppel by deed applied, preventing the respondents from asserting inconsistent rights.

The final orders of the court reflected the findings on the priority of equitable interests, the applicability of estoppel by deed, and the burden of proof concerning the alleged forged signature. The court ruled in favour of the applicants, granting them priority over the respondents' interest and preventing the respondents from asserting rights that were inconsistent with the deed. The court also noted that expert opinion on handwriting could be a factor in determining the authenticity of a signature, but that the ultimate decision on forgery rested on the standard of proof.

Orders