Steven Murabito v Ageist Pty Ltd - [2021] NSWSC 1102

Supreme Court

New South Wales

Medium Neutral Citation: Steven Murabito & Ors v Ageist Pty Ltd [2021] NSWSC 1102
Hearing dates: 24 August 2021
Date of orders: 24 August 2021
Decision date: 24 August 2021
Jurisdiction: Equity - Duty List
Before: Rein J
Decision:
See [17] and [19]

Catchwords:
EQUITY — Equitable remedies — Injunctions — Application to injunct the settlement of the sale of a property — Several prior caveats lodged, and claims made by, the Plaintiffs and related parties on and in respect of the property — The Court, on several prior occasions, ordered that all caveats lodged by the Plaintiffs (and another related party) be removed — The Court previously ordered that no further caveats were to be lodged on the property by several of the Plaintiffs and a related party — The evidence in support of the application did not meet the standard required for the grant of interlocutory relief — Other grounds for refusing interlocutory relief considered — Held: interlocutory relief refused

Legislation Cited:
Civil Procedure Act 2005 (NSW)
National Credit Code (Cth)

Cases Cited:
Ageist Pty Ltd v Lilly (Lila) Stojcevski [2021] NSWSC 1105
Ageist Pty Ltd v Samuel M Holdings Pty Ltd (Receiver and Manager Appointed) [2021] NSWSC 988
Ageist Pty Ltd v Stojcevska (Supreme Court (NSW), Darke J, 19 July 2021, unrep)
Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57
Capgemini US v Case [2004] NSWSC 674
Goater v Commonwealth Bank of Australia [2014] NSWCA 265
Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161
The Trust Company (PTAL) Ltd v Samuel M Holdings Pty Ltd [2020] NSWSC 863
Winau Australia Pty Ltd v LCC Property Development Pty Ltd [2021] NSWSC 612

Texts Cited:
JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (5th ed, 2014, LexisNexis)

Category: Principal judgment
Parties: Steven Murabito (First Plaintiff)
Lila Stojcevski (Second Plaintiff)
Bosilka Stojcevska (Third Plaintiff)
Ageist Pty Ltd (Defendant)
Representation:
Counsel:
H Stowe (First and Second Plaintiffs)
A G Martin (Defendant)
Solicitors:
M J Woods & Co Solicitors (First and Second Plaintiffs)
Summer Lawyers (Defendant)

File Number(s): 2021/00240774
Publication restriction: Nil

Judgment

The present proceedings (which I shall refer to as “the New Proceedings”) were commenced on the afternoon of 23 August 2021 having been filed in the Registry. They concern a property known as 15 O’Donnell Street, Port Kembla NSW 2505 (“the Property”). The Plaintiffs are Mr Steven Murabito, Ms Lila Stojcevski and Ms Bosilka Stojcevska. Mr H Stowe of Counsel, instructed by Mr M Woods, solicitor, appeared for Mr Murabito and Lila. Whether he appeared for Bosilka was left in doubt. Mr AG Martin of Counsel appeared for Ageist Pty Ltd (“Ageist”).
I dealt with the New Proceedings on 24 August 2021 in the Duty List and informed the parties at 4:30pm of my determination that the Summons should be dismissed. Mr Stowe indicated that he wished to seek instructions as to whether reasons were required. By email…

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: [2021] NSWSC 1102
Decision Date: 24 August 2021

CaseChat Overview and Summary

Steven Murabito brought an application against Ageist Pty Ltd, seeking to prevent the settlement of the sale of a property. The case involved several prior caveats and claims on the property by Murabito and related parties, which had already been addressed in previous court orders. The court had previously ordered the removal of all caveats lodged by the plaintiffs and prohibited further caveats from being lodged by certain parties.

The legal issues before the court centred on the grant of interlocutory relief, specifically an injunction to prevent the sale of the property. The court needed to determine whether the evidence presented by Murabito met the necessary standard to grant such relief. Additionally, the court considered other grounds for refusing the interlocutory relief, given the history of the case and previous court orders.

In its decision, the court found that the evidence provided by Murabito did not meet the required standard for interlocutory relief. The court also considered other reasons for denying the application, including the history of the case and the previous orders that had been made. As a result, the application for interlocutory relief was refused. The court did not grant the injunction sought by Murabito, and the settlement of the sale of the property proceeded as planned.

Orders