Gerar Sleiman v Paulette Afeich & Anor [2005] NSWSC 900

New South Wales Supreme Court

CITATION : Gerar Sleiman v Paulette Afeich & Anor [2005] NSWSC 900

HEARING DATE(S) : 30 August 2005

JUDGMENT DATE : 30 August 2005

JUDGMENT OF : Brereton J

DECISION : Summons dismissed

CATCHWORDS : CONVEYANCING - LAND TITLES UNDER TORRENS SYSTEM - Caveats against dealings - Lapsing of Caveats - Application for extension - applicable test - whether seriously arguable case for substantive relief - where previous proceedings claiming same interest compromised - claim not sufficiently arguable - no question of principle. PROCEDURE - Judgments and Orders - Consent order - construction - whether claims not expressly dismissed survive judgment.

LEGISLATION CITED : Real Property Act, s 74J

Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 Appleton Papers Inc v Tomasetti Paper Pty Limited [1983] 3 NSWLR 208 CASES CITED : Henderson v Henderson (1843) 3 Hare 100, (1843) 67 ER 313 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Martyn v Glennan [1979] 2 NSWLR 234

Gerar Sleiman (plaintiff) PARTIES : Paulette Afeich (first defendant) Peter Solomon (second defendant)

FILE NUMBER(S) : SC 4672/05

J Dupree (plaintiff) COUNSEL : W Carney (defendants)

B J Macree & Co (plaintiff) SOLICITORS : Chris Jurd (defendants)

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Brereton J

Tuesday 30 August 2005

4672/05 Gerar Sleiman v Paulette Afeich & Anor JUDGMENT (ex tempore) 1 HIS HONOUR: By summons filed on 25 August 2005 the plaintiff, Gerar Sleiman claims an order extending the operation of caveat number AA373557L until further order of the court. The defendants, Paulette Afeich and Peter Solomon, who are the registered proprietors of the land affected by the caveat, oppose that relief. 2 For the purposes of this application, and without pretending to make findings of fact on a final basis, I take the relevant facts to be as follows. The plaintiff, Mr Sleiman and the second defendant, Mr Solomon (who is also sometimes known as Sleiman) are brothers. The first defendant, Ms Afeich, is the wife of Mr Solomon. 3 On 3 July 1978, Mr Sleiman and Mr Solomon became the registered proprietors of the land comprised in certificate of title volume 13244 folio 15 situate at and known as 46 Arnott Street, Marayong, as tenants in common in equal shares. They apparently remained so registered until, on or about 16 September 2003, Mr Solomon signed a transfer, purportedly as transferor of Mr Sleiman's share in the property, to Ms Afeich. Mr Solomon says that he signed in the place provided for the signature of the transferor at the request of Mr Sleiman in circumstances where Mr Sleiman's wife, Norma Sleiman, had instituted proceedings in the Family Court of Australia against Mr Sleiman also joining Mr Solomon and Ms Afeich as additional respondents, in which Norma claimed relief relating to Mr Sleiman's interest in Arnott Street. Ms Afeich has since accepted the transfer and it has been lodged as registered dealing 9977341T, with the result that the registered proprietors of Arnott Street are now Ms Afeich and Mr Solomon. For the purposes of this application, were it necessary to do so, I would accept that it was at least seriously arguable that Ms Afeich was on notice before the registration of the transfer that it had not been executed by the registered proprietor, Mr Sleiman, but had purportedly been executed on his behalf by Mr Solomon. 4 By the transfer the transferor, purportedly Mr Sleiman, acknowledges receipt of consideration of $160,000 and transfers to Ms Afeich an estate in fee simple in Arnott Street. There is at least a seriously arguable case that neither $160,000 nor any part of it has in fact been paid. 5 On or about 3 February 2004 Mr Sleiman lodged caveat AA373557L in respect of the Arnott Street property, claiming an interest in the following terms: Tenant in common as to one half share with Peter Sleiman (also known as Solomon) by virtue of the facts: