CB Cuckoo Pty Ltd v Kyriacou [2021] NSWSC 991

CB Cuckoo Pty Ltd v Kyriacou [2021] NSWSC 991

The defendant accepted that he had no caveatable interest in the Somersby Property. In relation to the Pitt Street Property, the statement of claim did not give rise to a serious question to be tried that George Kyriacou held an equitable caveatable interest. On the pleaded scenario, any claim to a beneficial interest in the property was for Filomina Kyriacou to assert, with any claim by George Kyriacou being derivative from her asserted interest or trust declaration. Accordingly, the proper caveator would be Filomina Kyriacou, not George Kyriacou, and both caveats were ordered to be withdrawn.

Jurisdiction
Australia
Judgment Date
02 August 2021
Procedural Posture
Application by Amended Summons for Orders Under S 74 MA of the Real Property Act 1900 (nsw) Requiring Withdrawal of Caveats / Principal Judgment on Application
Outcome
Orders made requiring withdrawal of both caveats; amended summons otherwise dismissed; defendant ordered to pay the plaintiffs' costs of the amended summons.
Legal Topics
['removal of Caveat' 'caveatable Interest' 'trusts' 'serious Question to Be Tried']
['land Law' 'equity' 'real Property'] ['removal of Caveat' 'caveatable Interest' 'trusts' 'serious Question to Be Tried']

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Procedural Posture

Application by Amended Summons for Orders Under S 74 MA of the Real Property Act 1900 (nsw) Requiring Withdrawal of Caveats / Principal Judgment on Application

Legal Issues

  1. 1 ['Whether there was a serious question to be tried that the defendant had a caveatable interest in the Pitt Street Property.' 'Whether the caveats over the Pitt Street Property and the Somersby Property should be withdrawn under s 74MA of the Real Property Act 1900 (NSW).']

Ratio Decidendi

The defendant accepted that he had no caveatable interest in the Somersby Property. In relation to the Pitt Street Property, the statement of claim did not give rise to a serious question to be tried that George Kyriacou held an equitable caveatable interest. On the pleaded scenario, any claim to a beneficial interest in the property was for Filomina Kyriacou to assert, with any claim by George Kyriacou being derivative from her asserted interest or trust declaration. Accordingly, the proper caveator would be Filomina Kyriacou, not George Kyriacou, and both caveats were ordered to be withdrawn.

Court Disposition

Orders made requiring withdrawal of both caveats; amended summons otherwise dismissed; defendant ordered to pay the plaintiffs' costs of the amended summons.

Orders

  • ['Order pursuant to s 74MA of the Real Property Act 1900 (NSW) that the defendant withdraw Caveat AR140801 forthwith.' 'Order pursuant to s 74MA of the Real Property Act 1900 (NSW) that the defendant withdraw Caveat AR140802 forthwith.' 'Order that these orders be entered forthwith.' "Order that the Defendant pay...