Syed v Afroz - [2024] NSWSC 797

Supreme Court

New South Wales

Medium Neutral Citation: Syed v Afroz [2024] NSWSC 797
Hearing dates: 27 June 2024
Date of orders: 27 June 2024
Decision date: 27 June 2024
Jurisdiction: Equity - Duty List
Before: Meek J
Decision:
Referral made pursuant to r 7.36 Uniform Civil Procedure Rules 2005 (NSW) for legal assistance to the plaintiff.

Catchwords:
REAL PROPERTY — Caveats — Plaintiff sought extension of caveat on property auctioned by defendant, who was joint tenant and sole trustee to act on the sale — Other joint tenant of property borrowed funds from plaintiff pursuant to personal loan agreement — Borrower’s only obligation under loan agreement was to repay principal balance — Whether mere borrowing of money gives rise to a caveatable interest — Ordinarily, mere fact that a caveator is a creditor of the registered proprietor does not give rise to a caveatable interest in land, as a caveat cannot be lodged to protect a mere contractual or personal right
CIVIL PROCEDURE — Representation — Unrepresented litigants — In correspondence with Court, plaintiff sought some form of legal assistance in circumstances where solicitor who filed summons on plaintiff’s behalf appeared to no longer represent him — Whether order should be made pursuant to r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW) to refer the plaintiff to the registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance — Held that a referral should be made in favour of the plaintiff

Legislation Cited:
Real Property Act 1900 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Mastronardo v Remo West Ryde Pty Ltd [2024] NSWSC 8

Texts Cited:
Edgeworth, Brendan, Butt’s Land Law (7th ed, 2017, Thomson Reuters)
Lindsay, Shannon, Caveats Against Dealings in Australia and New Zealand (1995, Federation Press)

Category: Procedural rulings
Parties: Majher Murad Syed (Plaintiff)
Mita Farjina Afroz (alternatively, Mita Farjina Rahman) (Defendant)
Representation: Self-represented (Plaintiff)

File Number(s): 2024/234986

EX TEMPORE JUDGMENT (REVISED)

HIS HONOUR: The application before the Court is an application by summons filed on 24 June 2024 by the plaintiff, Mr Syed, seeking an order to extend the operation of a caveat pursuant to s 74K of the Real Property Act 1900 (NSW), and such other order as the Court considers appropriate (Claim to extend the operation of the caveat).
The summons is supported by an affidavit of Mr Syed affirmed 21 July 2024.
Although it is not an order sought in the summons, the plaintiff made it clear by correspondence late yesterday to my Associate (which led to my listing the matter this morning) that he wished to seek some sort of legal assistance in circumstances in which he was no longer being represented (Claim for pro bono assistance).
On the hearing of the application, the plaintiff sought permission to have assistance in indicating matters to the Court by his friend John Chabailuk. I permitted such assistance by Mr Chabailuk. I considered that, in the circumstances, there…

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: [2024] NSWSC 797
Decision Date: 27 June 2024

CaseChat Overview and Summary

The case of Syed v Afroz involved a dispute over a property that was auctioned by the defendant, Afroz, who was both a joint tenant and the sole trustee to act on the sale. The plaintiff, Syed, sought an extension of a caveat on the property. Syed had loaned funds to the other joint tenant of the property under a personal loan agreement, which stipulated that the borrower's sole obligation was to repay the principal balance. Syed argued that this borrowing gave rise to a caveatable interest, but the court needed to determine whether such a mere borrowing of money could indeed create a caveatable interest in land.

The court had to decide whether the fact that Syed was a creditor of the registered proprietor, Afroz, was sufficient to grant Syed a caveatable interest in the property. The court noted that generally, a mere creditor relationship does not entitle a caveator to lodge a caveat to protect a contractual or personal right. The key issue was whether Syed's status as a creditor could be transformed into a caveatable interest by virtue of the personal loan agreement. The court also considered whether it should make an order under rule 7.36 of the Uniform Civil Procedure Rules 2005 (NSW) to refer Syed to the Pro Bono Panel for legal assistance, given that he was unrepresented in the proceedings.

The court held that a mere borrowing of money did not give rise to a caveatable interest in land. It found that the fact that Syed was a creditor of Afroz did not entitle him to lodge a caveat to protect his personal right. Consequently, the court denied Syed's application for an extension of the caveat. Additionally, the court made an order referring Syed to the Pro Bono Panel for legal assistance, as he was unrepresented and had sought some form of legal help in his correspondence with the court. This decision underscores the principle that a caveat cannot be used to protect a mere contractual or personal right.

Orders