Toubia v Toubia [2023] NSWSC 993

Toubia v Toubia [2023] NSWSC 993

The plaintiff's affidavit, pleaded claim and the April 2018 text message provided prima facie support for a serious question to be tried about whether he had a proprietary interest in the terrace. The defendant's reliance on corporate personality and analysis of payment descriptions raised issues for final hearing rather than defeating the interlocutory application. The evidence of likely financial prejudice to the defendant was of little weight and was inconsistent with the submission that damages would be adequate, so the balance of convenience firmly favoured granting leave. The attack on the plaintiff's undertaking as to damages was insufficient. Leave to lodge the further caveat was...

Jurisdiction
Australia
Judgment Date
18 August 2023
Procedural Posture
Application for Leave to Lodge a Further Caveat Under S 74 O of the Real Property Act 1900 (nsw) / Interlocutory Motion in the Equity Applications List
Outcome
Leave to lodge a further caveat granted; defendant ordered to pay the plaintiff's costs of the motion.
Legal Topics
['caveats' 'lodgment of Further Caveat Claiming Same Interest as Previous Caveat' 'serious Question to Be Tried' 'balance of Convenience' 'constructive Trust' 'proprietary Estoppel' 'costs']
['land Law' 'equity' 'property Law'] ['caveats' 'lodgment of Further Caveat Claiming Same Interest as Previous Caveat' 'serious Question to Be Tried' 'balance of Convenience' 'constructive Trust' 'proprietary Estoppel' 'costs']

Case Brief

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Procedural Posture

Application for Leave to Lodge a Further Caveat Under S 74 O of the Real Property Act 1900 (nsw) / Interlocutory Motion in the Equity Applications List

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave pursuant to s 74O of the Real Property Act 1900 (NSW) to lodge a further caveat over Lot 5 after an earlier caveat lapsed.' 'Whether the plaintiff demonstrated a prima facie case or serious question to be tried in relation to his claimed proprietary interest.' 'Whether the balance of convenience favoured granting leave to lodge the further caveat.' "Whether the plaintiff's usual undertaking as to damages was adequate." "Whether the defendant should pay the plaintiff's costs of the motion."]

Ratio Decidendi

The plaintiff's affidavit, pleaded claim and the April 2018 text message provided prima facie support for a serious question to be tried about whether he had a proprietary interest in the terrace. The defendant's reliance on corporate personality and analysis of payment descriptions raised issues for final hearing rather than defeating the interlocutory application. The evidence of likely financial prejudice to the defendant was of little weight and was inconsistent with the submission that damages would be adequate, so the balance of convenience firmly favoured granting leave. The attack on the plaintiff's undertaking as to damages was insufficient. Leave to lodge the further caveat was...

Court Disposition

Leave to lodge a further caveat granted; defendant ordered to pay the plaintiff's costs of the motion.

Orders

  • ['Upon the plaintiff giving to the Court the usual undertaking as to damages, pursuant to s 74O of the Real Property Act leave is granted to the plaintiff to lodge a further caveat in the form of annexure G to the affidavit of George Toubia sworn 23 June 2023.' "The defendant to pay the plaintiff's costs of the...