Morkaya v Parkinson; Parkinson v Morkaya [2010] NSWSC 596

Morkaya v Parkinson; Parkinson v Morkaya [2010] NSWSC 596

Fairfax did not establish a sufficiently arguable case to sustain its caveat because the caveat did not adequately describe the interest claimed and, on the evidence including comparison of signatures and absence of the purported witness, the Court was not satisfied that Ms Morkaya's disputed signature on the guarantee was sufficiently arguable. Mr Parkinson had an arguable limited caveatable interest arising from Ms Morkaya's undertaking to allow the Homebush property to be used as security for a bank guarantee, and the balance of convenience was affected by the proposed undervalue sale to her daughters, but his caveat was wholly defective because it described the interest only as...

Jurisdiction
Australia
Judgment Date
23 March 2010
Procedural Posture
Application Under (nsw) Real Property Act 1900, S 74 MA for Removal of Caveats / Notice of Motion Filed 22 February 2010; Ex Tempore Judgment on Procedural Ruling
Outcome
Caveats ordered withdrawn; injunction granted restraining Ms Morkaya from dealing with the property until further order; liberty to apply reserved; no orders as to costs.
Legal Topics
['torrens Title' 'caveats Against Dealings' 'removal of Caveats' 'caveatable Interests' 'balance of Convenience' 'injunction Restraining Dealings With Land']
['real Property' 'equity'] ['torrens Title' 'caveats Against Dealings' 'removal of Caveats' 'caveatable Interests' 'balance of Convenience' 'injunction Restraining Dealings With Land']

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Procedural Posture

Application Under (nsw) Real Property Act 1900, S 74 MA for Removal of Caveats / Notice of Motion Filed 22 February 2010; Ex Tempore Judgment on Procedural Ruling

Legal Issues

  1. 1 ['Whether Fairfax Media Publications Pty Limited had a seriously arguable caveatable interest supporting retention of its caveat over Folio Identifier 12/SP72249.' 'Whether David Anthony Parkinson had a seriously arguable caveatable interest supporting retention of his caveat over Folio Identifier 12/SP72249.' 'Whether the balance of convenience favoured retention or removal of the caveats.' 'Whether defective descriptions of the estate or interest claimed in the caveats required their removal.' 'Whether an injunction should be substituted to restrain Ms Morkaya from dealing with the property.']

Ratio Decidendi

Fairfax did not establish a sufficiently arguable case to sustain its caveat because the caveat did not adequately describe the interest claimed and, on the evidence including comparison of signatures and absence of the purported witness, the Court was not satisfied that Ms Morkaya's disputed signature on the guarantee was sufficiently arguable. Mr Parkinson had an arguable limited caveatable interest arising from Ms Morkaya's undertaking to allow the Homebush property to be used as security for a bank guarantee, and the balance of convenience was affected by the proposed undervalue sale to her daughters, but his caveat was wholly defective because it described the interest only as...

Court Disposition

Caveats ordered withdrawn; injunction granted restraining Ms Morkaya from dealing with the property until further order; liberty to apply reserved; no orders as to costs.

Orders

  • ['Pursuant to Real Property Act, s 74MA, by 30 March 2010 Fairfax Media Publications Pty Limited (ACN 003 357 720) withdraw caveat AE516XXXX.' 'By 30 March 2010 David Anthony Parkinson withdraw caveat AE189XXXX.' 'Upon David Anthony Parkinson giving to the court the usual undertaking as to damages, until further...