Kim v Anwar [2021] NSWSC 930

Supreme Court New South Wales

Medium Neutral Citation: Kim v Anwar [2021] NSWSC 930 Hearing dates: 28 July 2021 Date of orders: 28 July 2021 Decision date: 28 July 2021 Jurisdiction: Equity Before: Darke J Decision: Caveat ordered to be withdrawn pursuant to s 74MA of the Real Property Act. No order as to costs to the intent that each party bear their own costs of the proceedings. Catchwords: LAND LAW – caveats – extension or removal of caveats – defendant lodged caveat over the plaintiffs' property – claimed interest described as a charge – no evidence of any agreement creating a charge over the plaintiffs' property – no serious question to be tried – plaintiffs entered into a contract for the sale of the property with third party purchaser – purchaser issued notice to complete – balance of convenience favours removal of caveat – order that the defendant withdraw caveat pursuant to section 74MA of the Real Property Act 1900 (NSW) COSTS – departure from the general rule – successful plaintiffs seek costs on indemnity basis – defendant's caveat was lodged with consent or concurrence of first plaintiff – lodgement of caveat part of arrangement intended to hinder or undermine completion of contract for sale to which plaintiffs were bound – lodgement of caveat an abuse of caveat system – first plaintiff and defendant both responsible for abuse – cost of proceedings as much a product of arrangement between first plaintiff and defendant as a product of defendant's refusal to withdraw caveat – appropriate to depart from the general rule – no order made as to costs to the intent that each party bear their own costs of the proceedings Legislation Cited: Real Property Act 1900 (NSW), s 74MA Cases Cited: Hanson Construction Materials Pty Limited v Roberts (2016) 93 NSWLR 1; [2016] NSWCA 240 Category: Principal judgment Parties: Young Mi Kim (First Plaintiff) Ryung Han (Second Plaintiff) Decky Anwar (Defendant – self represented) Representation: Counsel: Mr J R B Pearson (Plaintiffs)