Wehbe v Abboud [2007] NSWSC 548

New South Wales Supreme Court

CITATION : Wehbe v Abboud [2007] NSWSC 548

HEARING DATE(S) : 21 March 2007 JURISDICTION : Equity Division Duty List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 21 March 2007

DECISION : Order that defendant withdraw caveat. Order defendant pay compensation for loss occasioned by wrongful lodging of caveat. Indemnity costs.

CATCHWORDS : REAL PROPERTY – land under Real Property Act – Caveats – Caveats against dealings – where lodged by solicitor claiming interest under contract to which solicitor is not party – where evidence refutes solicitor's claim to have lodged caveat in interests of his former clients

LEGISLATION CITED : (NSW) Real Property Act 1900 ss 74MA, 74P

PARTIES : Richard Robert Wehbe Leslie Abboud

FILE NUMBER(S) : SC 1889/07

COUNSEL : Mr R W Tregenza (plaintiff) Mr L Abboud (in person)

SOLICITORS : Carbone Lawyers (plaintiff)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY LIST

BRERETON J

Wednesday, 21 March 2007

1889/07 Richard Robert Wehbe v Leslie Abboud JUDGMENT (ex tempore) 1 HIS HONOUR: By summons filed on 19 March 2007, which was made returnable, by leave of the Court granted that day, at 10 am today, with an abridgment of time for service, the plaintiff Richard Robert Wehbe, who is the registered proprietor of the land comprised in Folio Identifier A/357463, situate at and known as 48 Louis Street, Granville, claims an order that the defendant Leslie Abboud forthwith withdraw caveat AC993827, and compensation for damage caused by the lodgement of the caveat pursuant to (NSW) Real Property Act 1900, s 74P. 2 Mr Wehbe has, by contract dated 15 January 2007, agreed to sell the land to Sayde Bazouni. An appointment for completion of that contract had been made for 16 March 2007, but did not proceed due to the existence of the caveat, which had been lodged not many days before 16 March 2007. 3 The caveat identifies the caveator as Leslie Abboud, Solicitor, of 237 Waterloo Road, Greenacre. It claims an interest as "equitable interest" by virtue of "exchange contract of sale of the subject property dated 19 November 2006". 4 Previously, by contract exchanged on 12 September 2006, Mr Wehbe had agreed to sell the subject property to Sayde Bazouni and Souad Bazouni. On the contract of 12 September 2006, the vendor's conveyancer is identified as L & Y Abboud, Conveyancers, and the purchasers' solicitors as Leslie Abboud, Solicitors. There is no evidence before me of any contract dated 19 November 2006 such as is referred to in the caveat, but Mr Abboud informs me that another contract, from Mr Wehbe to Sayde Bazouni, was substituted on or about that date for that dated 12 September 2006. 5 Some time after November 2006 there was a change in the solicitors acting for the parties. On the contract dated 15 January 2007, the vendor's solicitor is identified as Carbone Lawyers, and the purchaser's solicitor is named as Leslie Abboud Solicitors, but it does not follow that Mr Abboud has had any involvement in the preparation of that contract, since ordinarily the identity of the purchaser's solicitors is completed by the vendor's solicitors on instructions, without any necessary involvement on the part of the purchaser's solicitor. 6 On 16 March 2007, a facsimile letter was sent from Leslie Abboud Solicitors to Carbone Solicitors, which recorded: Please note that Mr Wehbe did request a new contract and for us to proceed with the discharge of mortgage for the abovementioned property, hence we proceeded with the request and discharge of mortgage following exchange of contracts with the same purchaser Sayde Bazouni. We believe that the vendor and purchaser were friends and acquainted therefore the promise was that the full amount of monies owing by both parties will be paid on settlement. Due to the conflict of interest we recommended that Mr Wehbe seek your assistance in this matter and we shall send you the file as soon as our fees were paid (Invoices Enclosed). Matter proceeded when both parties' changes solicitors to avoid payments therefore Mr Leslie Abboud (Principal) lodged a caveat on the property pending payments. Please note that we hold a contract executed by vendor and purchaser and no rescinding notice was received by either parties or advice of authority to discharge of file to another legal representative. On numerous occasions, by phone conversation daily, Mrs Wehbe told me on the phone that she will pay her duties and the purchaser was advised and promised to pay on three occasions but to no appearance. Kindly advise your clients instructions as to the payment of our invoices as the withdrawal of caveat is prepared to be picked up by 1 pm this afternoon.