Makaritis v Makaritis [2022] NSWSC 468

Makaritis v Makaritis [2022] NSWSC 468

Bill had an arguable but not strong proprietary estoppel claim, and his joint endeavour constructive trust claim would not justify an interlocutory order keeping him in possession because the appropriate final relief would involve sale and accounting for contributions. The balance of convenience strongly favoured HPH because Bill's occupation impeded rental of the property and left HPH unable to fund mortgage payments and outgoings, while Bill's undertaking as to damages was effectively worthless. HPH was therefore entitled to possession. The later stay application was refused because it was an attempt to re-litigate a finally determined interlocutory issue without any relevant change of...

Jurisdiction
Australia
Judgment Date
21 April 2022
Procedural Posture
Equity Procedural Rulings Concerning Injunction, Possession, Stay of Writ of Possession and Caveat Over Land / Interlocutory Motions Heard on 8, 10 and 25 February 2022; Reasons Delivered 21 April 2022
Outcome
Bill's applications for an adjournment, injunction and extended stay were refused; HPH obtained a possession order and leave to issue a writ of possession; Bill was granted leave to lodge a fresh caveat reflecting his claimed interests.
Legal Topics
['proprietary Estoppel' 'joint Endeavour Constructive Trust' 'possession Proceedings' 'interlocutory Injunction' 'balance of Convenience' 'stay of Writ of Possession' 'caveat' 'repeated Interlocutory Application']
['equity' 'real Property' 'trusts' 'civil Procedure'] ['proprietary Estoppel' 'joint Endeavour Constructive Trust' 'possession Proceedings' 'interlocutory Injunction' 'balance of Convenience' 'stay of Writ of Possession' 'caveat' 'repeated Interlocutory Application']

Case Brief

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Procedural Posture

Equity Procedural Rulings Concerning Injunction, Possession, Stay of Writ of Possession and Caveat Over Land / Interlocutory Motions Heard on 8, 10 and 25 February 2022; Reasons Delivered 21 April 2022

Legal Issues

  1. 1 ['Whether Bill Makaritis should receive an injunction or stay restraining HPH from enforcing its right to possession of the Maryland property.' 'Whether Bill had a sufficiently arguable proprietary estoppel or joint endeavour constructive trust claim to justify interlocutory relief maintaining his possession.' 'Whether the balance of convenience favoured Bill remaining in possession or HPH obtaining possession.' 'Whether HPH, as registered proprietor, should receive an order for possession and leave to issue a writ of possession.' 'Whether Bill could re-litigate the stay of possession order on a further interlocutory motion based on hardship evidence.' 'Whether Bill should be granted leave under Real Property Act 1900, s 74O to lodge a caveat reflecting his claimed equitable proprietary interests.']

Ratio Decidendi

Bill had an arguable but not strong proprietary estoppel claim, and his joint endeavour constructive trust claim would not justify an interlocutory order keeping him in possession because the appropriate final relief would involve sale and accounting for contributions. The balance of convenience strongly favoured HPH because Bill's occupation impeded rental of the property and left HPH unable to fund mortgage payments and outgoings, while Bill's undertaking as to damages was effectively worthless. HPH was therefore entitled to possession. The later stay application was refused because it was an attempt to re-litigate a finally determined interlocutory issue without any relevant change of...

Court Disposition

Bill's applications for an adjournment, injunction and extended stay were refused; HPH obtained a possession order and leave to issue a writ of possession; Bill was granted leave to lodge a fresh caveat reflecting his claimed interests.

Orders

  • ['On 8 February 2022, declined the application for an adjournment.' "On 8 February 2022, ordered the applicant to pay the respondent's costs of the application." 'On 8 February 2022, ordered that the motion be dismissed.' "On 8 February 2022, ordered the applicant to pay the respondent's costs of the motion." 'On 10...