Keremelevski v Keremelevski [2009] NSWSC 430

Keremelevski v Keremelevski [2009] NSWSC 430

The caveat should not be extended because Hamilton J had found that the plaintiff had no interest in the property and the caveat basis was not pressed at trial. However, the appeal was not obviously unarguable and a limited notice-based injunction would balance the plaintiff's potential prejudice if the property were dealt with against the defendants' prejudice, particularly as there was no evidence of a present intention to sell and the plaintiff's undertaking had little practical value.

Jurisdiction
Australia
Judgment Date
27 April 2009
Procedural Posture
Application for Extension of Caveat or Interlocutory Injunction Pending Appeal / Ex Tempore Procedural Ruling in the Equity Division Duty List
Outcome
Application for extension of caveat refused; limited injunction granted restraining Zivko Keremelevski and Sonya Keremelevski from alienating or further encumbering the property except on 21 days written notice to the plaintiff; costs of the motion to be costs in the appeal.
Legal Topics
['extension of Caveat Pending Appeal' 'interlocutory Injunction Pending Appeal' 'constructive Trust Claim Over Land' 'balance of Convenience' 'arguable Appeal' 'undertaking as to Damages']
['equity' 'civil Procedure' 'appeals' 'property Law'] ['extension of Caveat Pending Appeal' 'interlocutory Injunction Pending Appeal' 'constructive Trust Claim Over Land' 'balance of Convenience' 'arguable Appeal' 'undertaking as to Damages']

Case Brief

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Procedural Posture

Application for Extension of Caveat or Interlocutory Injunction Pending Appeal / Ex Tempore Procedural Ruling in the Equity Division Duty List

Legal Issues

  1. 1 ['Whether the plaintiff should be granted an extension of a caveat pending the hearing of an appeal.' 'Whether the plaintiff should instead be granted interlocutory injunctive relief restraining dealings with the property pending appeal.' 'Whether the proposed appeal was sufficiently arguable to justify interlocutory relief.' "Whether the balance of convenience and prejudice favoured relief, including having regard to the risk of dealings with the property and the value of the plaintiff's undertaking as to damages."]

Ratio Decidendi

The caveat should not be extended because Hamilton J had found that the plaintiff had no interest in the property and the caveat basis was not pressed at trial. However, the appeal was not obviously unarguable and a limited notice-based injunction would balance the plaintiff's potential prejudice if the property were dealt with against the defendants' prejudice, particularly as there was no evidence of a present intention to sell and the plaintiff's undertaking had little practical value.

Court Disposition

Application for extension of caveat refused; limited injunction granted restraining Zivko Keremelevski and Sonya Keremelevski from alienating or further encumbering the property except on 21 days written notice to the plaintiff; costs of the motion to be costs in the appeal.

Orders

  • ["Upon the plaintiff Fana Keremelevski by her counsel giving to the Court the usual undertaking as to damages, the defendants Zivko Keremelevski and Sonya Keremelevski be restrained until the hearing of the appeal in proceedings 401XX/09 or further order from, by themselves, their servants or agents, alienating or...