Antar v Fairchild Development Pty Ltd (R&M App) & Ors [2008] NSWSC 638

New South Wales Supreme Court

CITATION : Antar v Fairchild Development Pty Ltd (R&M App) & Ors [2008] NSWSC 638

HEARING DATE(S) : 16 June 2008

JUDGMENT DATE : 16 June 2008

JURISDICTION : Equity Division

JUDGMENT OF : Palmer J

EX TEMPORE JUDGMENT DATE : 16 June 2008

DECISION : Caveat extended.

CATCHWORDS : CAVEAT – EXTENSION – Whether prima facie case for caveatable interest made out. - POWER OF SALE – Whether mortgagee whose receiver adopts and seeks to enforce a contract for sale made before appointment of receiver is exercising power of sale and may invalidate a lease under s 53(4) Real Property Act.

LEGISLATION CITED : Real Property Act 1900 (NSW) – s 53(4), s 74K, s 74MA

CATEGORY : Procedural and other rulings

CASES CITED : - Iron Trades Employers' Insurance Association Ltd v Union of House & Land Investors Ltd [1937] Ch 313 - Parkinson v Braham [1962] SR(NSW) 663

Abdul Rahim Antar (Plaintiff) Fairchild Development Pty Ltd (R&M App) (In liq) (First Defendant) PARTIES : John Frederick Lord (Second Defendant) Atle Crowe-Maxwell (Third Defendant) St George Bank Limited (Fourth Defendant)

FILE NUMBER(S) : SC 2825/08

COUNSEL : A.J. Grant (Plaintiff) N.J. Kidd (Fourth Defendant)

SOLICITORS : Thurlow Fisher (Plaintiff) N.J. Kidd (Fourth Defendant)

2825/08 Antar v Fairchild Development Pty Ltd (R&M App) & Ors

JUDGMENT – Ex tempore 16 June, 2008

1 There are two Notices of Motion before the Court. The Plaintiff's Amended Notice of Motion seeks an order pursuant to s 74K of the Real Property Act 1900 (NSW) extending the operation of a caveat. The Fourth Defendant's Notice of Motion seeks an order under s 74MA of the Real Property Act that the Plaintiff withdraw that caveat forthwith. The same questions arise in both applications: does the Plaintiff have an arguable or prima facie claim to the interest which he seeks to protect by the caveat and, secondly, where does the balance of convenience lie as to whether or not the caveat should be extended or should be withdrawn. The facts are somewhat unusual. For the purposes of these applications they may be summarised as follows. 2 The First Defendant ("Fairchild"), is the registered proprietor of commercial premises at Fairfield comprising retail shops and offices. The Plaintiff, Mr Antar, carries on business as a green grocer. In early 2006 he negotiated for a lease for one of the shops in the premises. He attended a number of meetings with Mr Mahmoud, a director of Fairchild. Mr Antar says that agreement as to the essential terms of the lease was reached and he embodied those terms in a document which was signed by Mr Mahmoud and another director of Fairchild, Mr Skaf, on or about 17 February 2006. That document, apparently signed by the two directors of Fairchild, is in evidence. 3 Fairchild gave instructions to its solicitors to prepare a formal lease. While documentation was being prepared, Mr Antar paid a deposit to Fairchild and was let into possession of the shop. He undertook a fit-out and commenced trading from about May 2006. He continues to trade in the shop to the present time. He has paid rent since June 2006 after expiry of a rent-free period and his rent is currently paid up to 30 June 2008. 4 The execution of a formal lease between Mr Antar and Fairchild was delayed because of a dispute between those parties as to its terms. Protracted correspondence between the parties and their solicitors ensued. On 2 May 2007, as the dispute had not then been resolved, Mr Antar's solicitors lodged a caveat against the title to the Fairfield property. The nature of the estate or interest claimed was described thus: "Leasehold interest pursuant to agreement dated 17 February 2006."