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Schibaia v Elias

Schibaia v Elias

Case [2013] NSWSC 1485 25 September 2013

Adverse Possession

Caveats

Easements & Covenants

Property Law

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Supreme Court

New South Wales

Medium Neutral Citation: Schibaia v Elias [2013] NSWSC 1485
Hearing dates: 25/09/2013
Decision date: 25 September 2013
Jurisdiction: Equity Division - Technology and Construction List
Before: McDougall J
Decision:
Decline to extend operation of existing caveats. Grant plaintiffs leave to lodge fresh caveats.

Catchwords: REAL PROPERTY - caveats - application to extend operation of caveats - where caveats not stamped - whether caveats sufficiently identify the nature of the estate or interest claimed
Legislation Cited: Duties Act 1997 (NSW)
Real Property Act 1900 (NSW)
Real Property Regulation 2003 (NSW
Stamp Duties Act 1920 (NSW)
Cases Cited: Albarran v Joe & Joe Developments [2010] NSWSC 1385
Arnautovic & Sutherland v Cvitanovic (2011) 199 FCR 1.
Bellissimo v JCL Investments Pty Ltd [2009] NSWSC 1260
Boral Recycling v Wake [2009] NSWSC 712
Circuit Finance Pty Ltd v Crown & Gleason Securities Pty Ltd (2005) 12 BPR 23,403
Hanson Construction Materials v Vimwise Civil Engineering (2005) 12 BPR 23,355
Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533
McCallum v National Australia Bank Ltd [2000] NSWCA 218
Category: Procedural and other rulings
Parties: Peter George Schibaia (First plaintiff)
Violet Schibaia (Second plaintiff)
Anthony Elias (First defendant)
Jack Citraro (Second defendant)
Representation: Counsel:
C Jarmillo (Solicitor) (Plaintiffs)
B DeBuse (Defendants)
Solicitors:
William Roberts Lawyers (Plaintiffs)
Kreisson Legal (Defendants)

File Number(s): 2013/288244

Judgment (ex tempore - revised 25 september 2013)

HIS HONOUR:

Procedural history

This matter came before the Court yesterday in the duty list, on the application of the plaintiffs to extend the operation of caveats lodged by them against the title to land owned by the defendants.

The defendants, having been notified of the application, appeared by counsel and put submissions as to the relief sought.

In the course of argument, it became clear that there were significant problems with the caveats the subject of the application. One problem was as to whether the underlying instruments had been stamped. That problem required consideration of s 211 of the Duties Act 1997 (NSW).

Another problem was as to the description of the interest claimed by the caveats. It was said to be in each case an "equitable interest created pursuant to clause 6" of a Deed that was identified, and to arise by virtue of that clause of that Deed. The problem thus identified is one that has been considered in a number of first instance decisions, commencing with the judgment of Campbell J in Hanson Construction Materials v Vimwise Civil Engineering (2005) 12 BPR 23,355. That decision has been considered by (among others) Brereton J in Circuit Finance Pty Ltd v Crown & Gleason Securities Pty Ltd (2005) 12 BPR 23,403. I referred to those decisions in my own judgment in Albarran v Joe & Joe Developments [2010] NSWSC 1385. There are numerous other first instance decisions in this Court applying the reasoning of Campbell J in Hanson, as explained by Brereton J in Circuit Finance.

A third…

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 Schibaia v Elias

Details

AGLC: Schibaia v Elias [2013] NSWSC 1485
Case: [2013] NSWSC 1485
Decision Date: 25 September 2013

CaseChat Overview and Summary

The case of Schibaia v Elias involved a dispute over the validity of caveats lodged over certain properties. The respondent, Elias, lodged caveats over three properties owned by the applicant, Schibaia, to prevent their sale. The caveats were not stamped and did not identify the nature of the estate or interest claimed. Schibaia applied to have the caveats removed. The court had to determine whether the caveats were validly lodged and if they could be extended to cover the properties in question. The legal issues centred on whether the unstamped caveats were sufficient to identify the nature of the estate or interest claimed, and if the caveator's failure to stamp the caveats rendered them ineffective.

The court examined the relevant provisions of the Real Property Act and found that the unstamped caveats did not meet the statutory requirements. The court held that a caveat must be stamped within one month of lodging to be effective, and failure to do so results in the caveat being invalid. Additionally, the court found that the caveats did not sufficiently identify the nature of the estate or interest claimed, as they did not specify the extent of the interest being protected. The court concluded that the caveats were invalid and ordered that they be removed from the register.

As a result of the court's decision, the caveats were removed from the register, and Schibaia was able to proceed with the sale of the properties. The court's decision highlights the importance of following statutory requirements when lodging caveats and the need for caveats to be sufficiently specific to be effective. The case serves as a reminder to caveators to ensure that their caveats are properly stamped and adequately identify the nature of the estate or interest claimed.

Orders