Irina Prodger v Trevor William Prodger & Anor (No. 2) [2015] NSWSC 339

Irina Prodger v Trevor William Prodger & Anor (No. 2) [2015] NSWSC 339

Leave under s 74O of the Real Property Act 1900 (NSW) to file a further caveat is refused because the second defendant has the benefit of indefeasibility of title and the plaintiff's claim does not amount to a present equitable interest caveatable under the Act. However, as there is evidence of a serious question to be tried regarding whether the property transactions were intended to defeat the plaintiff's potential family law entitlements, an interlocutory injunction restraining the second defendant from dealing with the property will be granted if the plaintiff gives the usual undertaking as to damages.

Parties
Plaintiff: Irina Prodger; First Defendant: Trevor William Prodger; Second Defendant: Jason Stuart Prodger
Jurisdiction
Australia
Judgment Date
30 March 2015
Procedural Posture
Application for Leave to File Caveat / Interlocutory Injunction / Interlocutory Decision (consequential Orders)
Outcome
Leave to file a further caveat refused; interlocutory injunction granted upon plaintiff providing undertaking as to damages; proceedings to be relisted on notice.
Legal Topics
Caveat, Indefeasibility of Title, Constructive Trust, Injunction, Personal Equity, Voluntary Conveyance, Intent to Defraud Creditors
Real Property Family Law Caveat Indefeasibility of Title Constructive Trust Injunction Personal Equity Voluntary Conveyance +1 more

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Parties

Irina Prodger

Plaintiff

Trevor William Prodger

First Defendant

Jason Stuart Prodger

Second Defendant

Procedural Posture

Application for Leave to File Caveat / Interlocutory Injunction / Interlocutory Decision (consequential Orders)

Legal Issues

  1. 1 Whether leave should be granted under Real Property Act 1900 (NSW), s 74O to lodge a further caveat over property now in the second defendant's name
  2. 2 Whether an interlocutory injunction should be granted against the registered proprietor dealing with the property, pending final determination of the plaintiff's claim

Ratio Decidendi

Leave under s 74O of the Real Property Act 1900 (NSW) to file a further caveat is refused because the second defendant has the benefit of indefeasibility of title and the plaintiff's claim does not amount to a present equitable interest caveatable under the Act. However, as there is evidence of a serious question to be tried regarding whether the property transactions were intended to defeat the plaintiff's potential family law entitlements, an interlocutory injunction restraining the second defendant from dealing with the property will be granted if the plaintiff gives the usual undertaking as to damages.

Court Disposition

Leave to file a further caveat refused; interlocutory injunction granted upon plaintiff providing undertaking as to damages; proceedings to be relisted on notice.

Orders

  • Plaintiff granted liberty to apply to re-list the proceedings upon 24 hours' notice to give the usual undertaking as to damages.
  • Upon the plaintiff so undertaking, injunction restraining the second defendant from disposing of or otherwise dealing with all legal and beneficial interest in 'the shed' property until further order.