Pham v Mazen Zraika; Pham v Sebie (No. 4) [2018] NSWSC 566

Pham v Mazen Zraika; Pham v Sebie (No. 4) [2018] NSWSC 566

The caveator (Mazen Zraika) failed to establish a serious question to be tried as the caveat was formally defective, unsupported by evidence, and internally inconsistent. The balance of convenience further favoured removal as any genuine interest would be protected by funds paid into court upon sale; there was a risk of further abusive lodgment of caveats justifying restraint and an order against the Registrar General. Costs were ordered in favour of the plaintiffs.

Jurisdiction
Australia
Judgment Date
02 May 2018
Procedural Posture
Motion / Orders on Interlocutory Motion (removal of Caveat, Costs, Ancillary Orders)
Outcome
Orders made to withdraw caveat, restrain further caveat lodgement, and for the caveator to pay plaintiffs' costs; ancillary orders against Registrar General and for service and further conduct of proceedings.
Legal Topics
['caveats' 'withdrawal of Caveats' 'real Property Act 1900 S 74 Ma' 'real Property Act 1900 S 74 O']
['real Property' 'equity'] ['caveats' 'withdrawal of Caveats' 'real Property Act 1900 S 74 Ma' 'real Property Act 1900 S 74 O']

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Procedural Posture

Motion / Orders on Interlocutory Motion (removal of Caveat, Costs, Ancillary Orders)

Legal Issues

  1. 1 ['Whether the caveator (Mazen Zraika) established a serious question to be tried justifying maintenance of the caveat under Real Property Act 1900, s 74MA' 'Whether the balance of convenience favoured removal of the caveat' 'Whether restraining orders under Real Property Act 1900, s 74O should be made to prevent further caveats' 'Whether costs should be awarded and on what basis']

Ratio Decidendi

The caveator (Mazen Zraika) failed to establish a serious question to be tried as the caveat was formally defective, unsupported by evidence, and internally inconsistent. The balance of convenience further favoured removal as any genuine interest would be protected by funds paid into court upon sale; there was a risk of further abusive lodgment of caveats justifying restraint and an order against the Registrar General. Costs were ordered in favour of the plaintiffs.

Court Disposition

Orders made to withdraw caveat, restrain further caveat lodgement, and for the caveator to pay plaintiffs' costs; ancillary orders against Registrar General and for service and further conduct of proceedings.

Orders

  • ['By 4pm on 26 April 2018, Mazen Zraika shall withdraw caveat AN232813 pursuant to s 74MA of the Real Property Act 1900 (NSW).' 'If not withdrawn, the caveat will lapse and the Registrar General is authorised to remove it.' 'Pursuant to s 74O of the Real Property Act, Mazen Zraika is restrained from lodging or...