Phoenician Holdings Pty Ltd t/as Cadmus Lawyers v Rahme [2012] NSWSC 1604

Phoenician Holdings Pty Ltd t/as Cadmus Lawyers v Rahme [2012] NSWSC 1604

Because the charge and mortgage were extant, had been executed to secure legal fees, and gave the respondent a sufficiently arguable caveatable interest, but the balance of convenience favoured allowing the applicants to complete the sale, the caveat should be withdrawn only upon provision of adequate substituted security. The appropriate security was $1.7 million in a controlled money account plus settlement cheques for specified counsel invoices, and no general undertaking as to damages was required for the short period of the interlocutory orders except for the limited undertaking concerning failure to provide a withdrawal of caveat at completion.

Jurisdiction
Australia
Judgment Date
21 December 2012
Procedural Posture
Interlocutory Application Concerning Removal or Withdrawal of a Caveat to Permit Sale of Torrens Title Land / Motion Filed 12 December 2012 Before the Substantive Summons and Cross Summons Listed for Hearing Commencing 27 February 2013
Outcome
Motion partly granted: caveat to be withdrawn upon payment of specified security; otherwise the motion was dismissed; costs in the cause.
Legal Topics
['caveat Against Dealings' 'removal of Caveat' 'caveatable Interest' 'balance of Convenience' 'replacement Security' 'undertaking as to Damages' 'controlled Money Account']
['real Property' 'equity' 'torrens Title' 'legal Costs and Security'] ['caveat Against Dealings' 'removal of Caveat' 'caveatable Interest' 'balance of Convenience' 'replacement Security' 'undertaking as to Damages' 'controlled Money Account']

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Procedural Posture

Interlocutory Application Concerning Removal or Withdrawal of a Caveat to Permit Sale of Torrens Title Land / Motion Filed 12 December 2012 Before the Substantive Summons and Cross Summons Listed for Hearing Commencing 27 February 2013

Legal Issues

  1. 1 ['Whether the caveat should be withdrawn or removed to allow completion of the contract for sale of the property.' "What form, method and amount of replacement security should be provided for the respondent's claimed secured legal fees and counsel's fees." 'Whether the respondent should be required to give the usual undertaking as to damages.']

Ratio Decidendi

Because the charge and mortgage were extant, had been executed to secure legal fees, and gave the respondent a sufficiently arguable caveatable interest, but the balance of convenience favoured allowing the applicants to complete the sale, the caveat should be withdrawn only upon provision of adequate substituted security. The appropriate security was $1.7 million in a controlled money account plus settlement cheques for specified counsel invoices, and no general undertaking as to damages was required for the short period of the interlocutory orders except for the limited undertaking concerning failure to provide a withdrawal of caveat at completion.

Court Disposition

Motion partly granted: caveat to be withdrawn upon payment of specified security; otherwise the motion was dismissed; costs in the cause.

Orders

  • ['The plaintiff withdraw the caveat on payment of the specified amounts by settlement cheques to be held in trust jointly by the solicitor for the plaintiff and the solicitor for the defendants.' 'The amount of $1.7 M be paid by those solicitors into a controlled money account.' 'The controlled money and any...