Weller v Museth [2017] NSWSC 1809

Procedural Posture

Land Law Proceeding Concerning Extension of Caveat and Alleged Security Interest Arising From Solicitor/client Costs Agreements / Urgent Summons; Interlocutory Application for Extension of Caveat Pending Trial

Legal Issues

1. 1 ["Whether the plaintiff had a seriously arguable caveatable interest in the defendant's properties arising from charging clauses in solicitor/client costs agreements." 'Whether the unsigned costs letters were capable of acceptance by the defendant giving further instructions.' 'Whether the charging clause was ineffective because it was conditional on the defendant being unable to pay fees as they fell due or on accounts not being rendered until proceedings concluded.' 'Whether the conditional nature of the costs agreements meant there was no entitlement to fees, particularly for the unsuccessful claim against the Club.' 'Whether the absence of an assessable bill or quantified amount defeated the claimed equitable charge.' 'Whether alleged influence, breach of fiduciary duty, failure to explain the security, or unreasonableness of the security defeated a prima facie case.' 'Whether the balance of convenience favoured extending the caveat.']

Ratio Decidendi

The plaintiff only barely established a seriously arguable case that the charging clauses in the costs agreements gave rise to an equitable charge over the defendant's properties securing amounts ultimately found owing, and the defendant's challenges raised issues for trial rather than defeating the prima facie case. The balance of convenience also barely favoured extension because there was no evidence of prejudice to the defendant from maintaining the caveat, while lapsing the caveat could allow registered interests to be created defeating the claimed interest. The caveat was extended subject to the plaintiff's usual undertaking for damages, but the plaintiff was ordered to pay the...

Court Disposition

Caveat extended until delivery of judgment at first instance in the proceedings or further order of the Court; plaintiff to pay the defendant's costs of the application.

Orders

• ['The Court noted that the plaintiff gives the usual undertaking for damages.' 'Caveat number AK245652 is extended until delivery of judgment at first instance in the proceedings or further order of the Court.' "The plaintiff is to pay the defendant's costs of the application for extension of the caveat."]