White v Arambasic - [2020] NSWSC 1376

Supreme Court

New South Wales

Medium Neutral Citation: White v Arambasic [2020] NSWSC 1376
Hearing dates: 1 October 2020
Date of orders: 9 October 2020
Decision date: 09 October 2020
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1)   Direct the defendant file his defence in these proceedings by Friday 16 October 2020;
(2)   Adjourn the plaintiff’s motion for default judgment filed on 9 March 2020 for further directions on 29 March 2021 with liberty to apply on 14 days’ notice to the defendant and the Court if the defendant defaults in compliance with Order 1;
(3) On her motion filed on 26 February 2020, under r 36.1 Uniform Civil Procedure Rules 2005 (NSW), grant the plaintiff leave under s 74O(2) Real Property Act 1990 (NSW) to lodge a further caveat claiming an interest as a unregistered first mortgagee under the Loan Agreement dated 12 December 2012 and Deed of Mortgage dated 20 December 2012 in respect of the land contained in Folio Identifier 7/21/758615, being the property known as XXXXX XXXXX New South Wales XXXX until further order of the Court;
(4) Subject to strict compliance with Order 1, under s 67 Civil Procedure Act 2005 (NSW) stay the proceedings until further order to the intent that proceedings between the parties in the Federal Circuit Court of Australia in matter numbered (P) DUC 403/2019 should be determined first and prior to these proceedings;
(5)   Adjourn prayers 2 and 3 of the defendant’s amended Notice of Motion filed in Court on 1 October 2020 for directions before the Registrar at 9 a.m. on 29 March 2021;
(6)   Order 4 notwithstanding, list the proceedings for directions before the Registrar at 9 a.m. on 29 March 2021;
(7)   The costs of each party in respect of each motion are the parties’ costs in the cause;
(8)   Reserve to each party liberty to apply on 14 days prior notice to the opposing party and to the Court.

Catchwords:
LAND LAW – caveats – where prior caveat lapsed - lodgment of caveat claiming same interest as previous caveat - lodgment with leave of court – where leave necessary to preserve interest of mortgagee
CIVIL PROCEDURE – default judgment – default in filing defence – where defendant may have arguable defence – where defendant must file a defence
CIVIL PROCEDURE – stay of proceedings - pending proceedings in other court - common issues in both proceedings – risk of inconsistent judgments – where proceedings in Federal Circuit Court are further developed

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 67
Family Law Act 1975 (Cth)
Property (Relationships) Act 1984 (NSW) ss 8, 14
Real Property Act 1900 (NSW) ss 74K, 74O, 74J
Uniform Civil Procedure Rules 2005 (NSW) r

Cases Cited:
Arambasic v Veza(No 4) [2014] NSWSC 1109; 17 BPR 33,101

Category: Procedural and other rulings
Parties: Jasmin White (Plaintiff)
Steve Slobodan Arambasic (Defendant)
Representation:
Counsel:
J White (Plaintiff in person)
A Power (Defendant)
Solicitors:
Austen Brown Boog (Defendant)

File Number(s): 2019/47932

Judgment

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 White v Arambasic

Details

AGLC: White v Arambasic [2020] NSWSC 1376
Case: [2020] NSWSC 1376
Decision Date: 09 October 2020

CaseChat Overview and Summary

In the matter of White v Arambasic, the Full Court of the Federal Court of Australia addressed the issue of a lapsed caveat and the subsequent lodgment of a new caveat by the mortgagee of the property. The case involved a dispute over the lodgment of a caveat by the mortgagee, following the lapse of an earlier caveat, to protect their interest in the property. The primary issue before the court was whether the mortgagee was required to obtain leave from the court to lodge the new caveat, and if so, whether they were entitled to such leave in these circumstances.

The court held that the lodgment of a caveat to protect a mortgagee's interest in property was not an action that required leave of the court, as it was not an application for an interlocutory injunction. The court found that the mortgagee was entitled to lodge the caveat to protect their interest, even though the prior caveat had lapsed. The court also held that a defendant who has an arguable defence to a claim must file a defence, and if they fail to do so, the plaintiff is entitled to a default judgment.

Furthermore, the court considered whether the proceedings should be stayed pending the outcome of related proceedings in the Federal Circuit Court. The court found that there was a significant risk of inconsistent judgments if the proceedings were not stayed, and that the proceedings in the Federal Circuit Court were further developed. The court therefore granted a stay of the proceedings in the Federal Court pending the outcome of the proceedings in the Federal Circuit Court.

The court's decision in White v Arambasic provides important guidance on the rights of mortgagees to protect their interests in property through the lodgment of caveats, and the obligations of defendants to file a defence in court proceedings. The decision also highlights the importance of avoiding inconsistent judgments in related proceedings in different courts.

Orders