O’Connor & Ors v Griffis [2022] NSWSC 197

O’Connor & Ors v Griffis [2022] NSWSC 197

There is a serious question to be tried that Estelle (plaintiff) is entitled to a one-third equitable interest in the Property as a beneficiary under an express trust created by the deceased's will, and that such interest is sufficient to support a caveat; the balance of convenience favours extension of the caveat pending determination of the substantive claims, especially since any prejudice to the defendant is outweighed by the plaintiffs' undertaking as to damages.

Parties
First Plaintiff: Estelle May O'Connor; Second Plaintiff: June Anne Griffis; Defendant: Marilyn Joan Griffis
Jurisdiction
Australia
Judgment Date
04 March 2022
Procedural Posture
Application to Extend Operation of Caveat / Interlocutory—application for Extension of Caveat
Outcome
Caveat extended until further order upon undertaking as to damages by plaintiffs.
Legal Topics
Caveats, Trusts and Trustees, Beneficiaries Under a Will, Constructive Trust, Indefeasibility of Title
Equity Land Law Caveats Trusts and Trustees Beneficiaries Under a Will Constructive Trust Indefeasibility of Title

Case Brief

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Parties

Estelle May O'Connor

First Plaintiff

June Anne Griffis

Second Plaintiff

Marilyn Joan Griffis

Defendant

Procedural Posture

Application to Extend Operation of Caveat / Interlocutory—application for Extension of Caveat

Legal Issues

  1. 1 Whether the caveator (Estelle) has a caveatable interest in the property based on a trust under the will of the deceased or a constructive trust; Whether alleged breaches of trust and transfer/mortgage of the property give rise to an equitable interest supporting the caveat; Whether balance of convenience favours extension of the caveat

Ratio Decidendi

There is a serious question to be tried that Estelle (plaintiff) is entitled to a one-third equitable interest in the Property as a beneficiary under an express trust created by the deceased's will, and that such interest is sufficient to support a caveat; the balance of convenience favours extension of the caveat pending determination of the substantive claims, especially since any prejudice to the defendant is outweighed by the plaintiffs' undertaking as to damages.

Court Disposition

Caveat extended until further order upon undertaking as to damages by plaintiffs.

Orders

  • Operation of caveat No AR713537 extended until further order pursuant to section 74K of the Real Property Act 1900 (NSW), subject to plaintiffs' undertaking as to damages.
  • Plaintiffs to file and serve a statement of claim by 7 March 2022.