White v Arambasic [2020] NSWSC 1376

White v Arambasic [2020] NSWSC 1376

Default judgment was not granted because the defendant may have a fairly arguable defence, particularly in light of findings in Arambasic v Veza (No 4). Leave to lodge a further caveat was granted because the plaintiff's asserted interest as an unregistered mortgagee was of substance and should be protected through the register rather than by a personal undertaking. Subject to the defendant filing a defence, the proceedings were stayed because the Federal Circuit Court proceedings concerning alleged de facto relationship property rights were an appropriate forum, were further developed, and raised a risk of inconsistent judgments and wasted costs if the possession proceedings continued...

Jurisdiction
Australia
Judgment Date
09 October 2020
Procedural Posture
Possession Proceedings / Hearing of Three Notices of Motion: Plaintiff's Motion Concerning a Caveat, Plaintiff's Motion for Default Judgment, and Defendant's Motion for a Stay of Proceedings
Outcome
Plaintiff's default judgment motion adjourned; plaintiff granted leave to lodge a further caveat; proceedings stayed subject to the defendant filing a defence; costs in the cause.
Legal Topics
['caveats' 'lapsed Caveat' 'leave to Lodge Further Caveat' 'default Judgment' 'stay of Proceedings' 'unregistered Mortgage' 'possession of Land' 'de Facto Relationship Property Proceedings' 'risk of Inconsistent Judgments']
['land Law' 'civil Procedure' 'property Law'] ['caveats' 'lapsed Caveat' 'leave to Lodge Further Caveat' 'default Judgment' 'stay of Proceedings' 'unregistered Mortgage' 'possession of Land' 'de Facto Relationship Property Proceedings' 'risk of Inconsistent Judgments']

Case Brief

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Procedural Posture

Possession Proceedings / Hearing of Three Notices of Motion: Plaintiff's Motion Concerning a Caveat, Plaintiff's Motion for Default Judgment, and Defendant's Motion for a Stay of Proceedings

Legal Issues

  1. 1 ['Whether default judgment for possession should be granted where the defendant had not filed a defence.' 'Whether the plaintiff should be granted leave under s 74O(2) Real Property Act 1900 (NSW) to lodge a further caveat claiming an interest as an unregistered first mortgagee after a prior caveat lapsed.' 'Whether the proceedings should be stayed under s 67 Civil Procedure Act 2005 (NSW) pending determination of proceedings in the Federal Circuit Court of Australia concerning alleged de facto relationship property rights.' 'Whether the defendant may have a fairly arguable defence arising from findings in Arambasic v Veza (No 4) [2014] NSWSC 1109; 17 BPR 33,101.']

Ratio Decidendi

Default judgment was not granted because the defendant may have a fairly arguable defence, particularly in light of findings in Arambasic v Veza (No 4). Leave to lodge a further caveat was granted because the plaintiff's asserted interest as an unregistered mortgagee was of substance and should be protected through the register rather than by a personal undertaking. Subject to the defendant filing a defence, the proceedings were stayed because the Federal Circuit Court proceedings concerning alleged de facto relationship property rights were an appropriate forum, were further developed, and raised a risk of inconsistent judgments and wasted costs if the possession proceedings continued...

Court Disposition

Plaintiff's default judgment motion adjourned; plaintiff granted leave to lodge a further caveat; proceedings stayed subject to the defendant filing a defence; costs in the cause.

Orders

  • ['Direct the defendant file his defence in these proceedings by Friday 16 October 2020.' "Adjourn the plaintiff's motion for default judgment filed on 9 March 2020 for further directions on 29 March 2021 with liberty to apply on 14 days' notice to the defendant and the Court if the defendant defaults in compliance...