Toubia v Toubia [2023] NSWSC 993

Supreme Court New South Wales

Medium Neutral Citation: Toubia v Toubia [2023] NSWSC 993 Hearing dates: 18 August 2023 Date of orders: 18 August 2023 Decision date: 18 August 2023 Jurisdiction: Equity - Applications List Before: Kunc J Decision: Leave to lodge further caveat granted; defendant to pay plaintiff's costs Catchwords: LAND LAW — Caveats — Lodgment of caveat claiming same interest as previous caveat — Lodgment with leave of court — No issue of principle Legislation Cited: Real Property Act 1900 Category: Procedural rulings Parties: George Toubia (plaintiff) Tony Toubia (defendant) Representation: Counsel: D Priestley SC / A Gauga (plaintiff) RW Tregenza (defendant)

Solicitors: Benchmark Lawyers (plaintiff) Rivera Legal (defendant) File Number(s): 2023/108398 Publication restriction: Nil

EX TEMPORE JUDGMENT (REVISED)

Introduction 1. Without disrespect, the Court will refer to the parties by their given names. 2. The plaintiff, George, and the defendant, Joe, are brothers. George was, at the relevant time, the sole shareholder and director of Reznov Enterprise Pty Ltd (Reznov), a building company. Joe was sole shareholder and director of TMR Investment Group Pty Ltd (TMR), a property developer. George and Joe are now in dispute about a development at Botany, which resulted in the construction of five terrace dwellings, each one now being a separate lot in the relevant deposited plan. 3. By motion filed 23 June 2023, George moves in the Applications List for leave pursuant to s 74O of the Real Property Act 1900 (NSW) to lodge a further caveat on the certificate of title for Lot 5 in the relevant deposited plan, being the fifth of the terraces constructed as part of the development. There is no dispute that an earlier caveat in relation to George's claim lapsed and that, while slightly differently expressed, the proposed further caveat claims the same interest as the lapsed caveat. It is not necessary to set out the circumstances for that lapsing, because the parties, sensibly if I may respectfully say so, agree that the present application should proceed as though it were an application for the extension of a caveat. 4. For the reasons which follow, the Court will grant the leave George has sought. Mr D Priestley of Senior Counsel appeared with Mr A Gauja of Counsel for George. Mr RW Tregenza of Counsel appeared for Joe.