Rose v Nikolaidis

[2004] NSWSC 1011

CITATION:	Rose v Nikolaidis [2004] NSWSC 1011
HEARING DATE(S):	11 October 2004
JUDGMENT DATE:	11 October 2004
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Order that caveat be withdrawn forthwith.
CATCHWORDS:	CONVEYANCING [185] - Land titles under the Torrens system - Caveats against dealings - Form of caveat - Statement of estate or interest - Statement reveals caveator relies on interest which is not caveatable.
LEGISLATION CITED:	Real Property Act 1900
PARTIES :	Laurie Rose (P) Leon Nikolaidis t/as M D Nikolaidis & Co (1D) Garry Noel Richards (2D)
FILE NUMBER(S):	SC 5509/04
COUNSEL:	C M Simpson (P) J K Chippindall (1D) No appearance (2D)
SOLICITORS:	Stuart Fowler & Partners (P) M D Nikolaidis & Co (1D) No appearance (2D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

MONDAY, 11 OCTOBER 2004

5509/04 LAURIE ROSE v LEON NIKOLAIDIS t/as M D NIKOLAIDIS & CO

JUDGMENT

1 HIS HONOUR: There is a complicated tale surrounding this matter relating to the costs of the first defendant, who is a solicitor, incurred for work done for the second defendant, in the sum of some $7,000 or $8,000. These are proceedings in effect to enforce payment of that sum, which has been assessed and which is also the subject of bankruptcy proceedings in the Federal Magistrates Court. However, what is occurring and is to occur in the Federal Magistrates Court is none of the affair of this Court.

2 What is the affair of this Court, having as it does jurisdiction over caveats under the Real Property Act 1900 (“the RPA”) is that there is a caveat placed upon the relevant title by the first defendant, which is in terms plainly unsustainable. I have said that the claim by the first defendant against the second defendant is for solicitor's costs said to be owing and the statement of the estate or interest claimed on the face of the caveat really says no more than that. The facts said to give rise to a charge over the property in the first defendant’s statement of the estate or interest claimed are simply the fact that a debt of $7,815 plus interest under a Local Court judgment is owing and that one of the registered proprietors, being the second defendant, “has undertaken to satisfy the judgment from the proceeds of sale of the property”.

3 It is plain on the face of the caveat, as I have said, that it is unsustainable and there is nothing else in the material before me that suggests that it is sustainable. A sale of the property is to be settled on Wednesday. All that remains for me to do is to order that the caveat be withdrawn forthwith. Equally, it is clear to me that the only appropriate result as to costs is that the first defendant be ordered to pay the plaintiff's costs of these proceedings.

4 I order that the first defendant withdraw caveat AA963212J from certificate of title folio identifier 8/12916 forthwith. I order that the first defendant pay the plaintiff's costs of these proceedings. The summons is otherwise dismissed. I direct that these orders be entered forthwith.

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Last Modified: 12/06/2004