Daftar v Al-Khamisy [2013] NSWSC 34

Daftar v Al-Khamisy [2013] NSWSC 34

The plaintiff's evidence showed loans made to enable the defendant to buy the property, but did not show any joint enterprise, agreement, understanding, express trust, or other facts capable of giving rise to a constructive or resulting trust. The caveat was therefore bad in form and the underlying facts disclosed no caveatable interest. The freezing order also failed because there was no evidence that the defendant proposed to dispose of or encumber the land, dissipate assets, or act to frustrate any judgment.

Jurisdiction
Australia
Judgment Date
23 January 2013
Procedural Posture
Application for Extension of Caveat Or, in the Alternative, Freezing Order / Interlocutory Application on Return of Summons
Outcome
Application for extension of caveat and freezing order dismissed; plaintiff granted leave to discontinue; plaintiff ordered to pay defendant's costs.
Legal Topics
['freezing Order' 'caveat Extension' 'constructive Trust' 'resulting Trust' 'caveatable Interest' 'serious Question to Be Tried' 'balance of Convenience']
['practice and Procedure' 'real Property' 'equity and Trusts'] ['freezing Order' 'caveat Extension' 'constructive Trust' 'resulting Trust' 'caveatable Interest' 'serious Question to Be Tried' 'balance of Convenience']

Case Brief

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Procedural Posture

Application for Extension of Caveat Or, in the Alternative, Freezing Order / Interlocutory Application on Return of Summons

Legal Issues

  1. 1 ["Whether the plaintiff's claim to an equitable interest as beneficiary of a constructive trust had or may have substance for the purposes of extending the caveat under s 74K of the Real Property Act 1900 (NSW)." 'Whether advances made to enable the defendant to buy land gave the plaintiff a caveatable equitable interest in the land.' 'Whether there was evidence justifying a freezing order restraining the defendant from selling, encumbering or otherwise dealing with the property.']

Ratio Decidendi

The plaintiff's evidence showed loans made to enable the defendant to buy the property, but did not show any joint enterprise, agreement, understanding, express trust, or other facts capable of giving rise to a constructive or resulting trust. The caveat was therefore bad in form and the underlying facts disclosed no caveatable interest. The freezing order also failed because there was no evidence that the defendant proposed to dispose of or encumber the land, dissipate assets, or act to frustrate any judgment.

Court Disposition

Application for extension of caveat and freezing order dismissed; plaintiff granted leave to discontinue; plaintiff ordered to pay defendant's costs.

Orders

  • ['The application for interlocutory relief in terms of the caveat and prayer 4A of the summons is dismissed.' 'The plaintiff is granted leave to discontinue.' 'The notice of discontinuance is to be filed and served within seven days.' "The plaintiff is to pay the defendant's costs of the proceedings."]