Supreme Court New South Wales Medium Neutral Citation: Cominos v Cominos [2013] NSWSC 27 Hearing dates: 22/01/2013 Decision date: 22 January 2013 Jurisdiction: Equity Division Before: McDougall J Decision: Defendant to withdraw caveat forthwith. Catchwords: REAL PROPERTY - caveats - removal of caveat - PRACTICE AND PROCEDURE - costs - lump sum costs order. Category: Procedural and other rulings Parties: Dion Cominos (Plaintiff) Gerasimos Dionisos Cominos (Defendant) Representation: Solicitors: Dion Cominos (Plaintiff) (In person) File Number(s): 2013/15577 Judgment (EX TEMPORE - REVISED 22 JANUARY 2013) 1HIS HONOUR: The plaintiff is the proprietor of land at Newcastle. The defendant, the plaintiff's father, has lodged a caveat against the title to that land. The interest claimed by the caveat is "an equitable mortgage". 2The facts said to give rise to that interest are: "The caveator is the father of the current registered proprietor of the land. Between approximately June 2011 and September 2012 the caveator loaned the current registered proprietor $95,000 for the purpose of developing the improvements on the land." 3The plaintiff seeks an order that the caveat be removed. The matter is of some urgency because the land in question is to be sold, and the proceeds of sale are to be used, among other things, to enable the plaintiff to settle amounts owing by him to a bank. That settlement is documented in a letter of 30 August 2012, which I have marked exhibit PX3. 4I am satisfied from the plaintiff's affidavit of service filed in court today that the defendant has been served. The defendant has been called outside court. There is no appearance. 5It is clear that the caveat must be removed. The interest claimed is undoubtedly capable of sustaining a caveat. However, the facts that are stated as giving rise to that interest do not demonstrate how the equitable mortgage arose. It is by no means clear or obvious that advances for the purpose of development would create any equitable or other interest in the land, let alone an equitable mortgage. That is so whether or not one takes into account the family relationship between the plaintiff and the defendant. 6Reinforcing that is the circumstance that the only agreement in evidence is one which, on its face, was made on 9 September 2011. That agreement was made between the present parties. By that agreement, the plaintiff acknowledged that he was indebted to the defendant at the date of the agreement in the sum of $80,000. The agreement provided for that sum (or the balance outstanding) to be repaid only after the sale of the land in question. Further, it contained an "entire agreement" clause. 7It is, I think, clear that the agreement is one to fix, or more accurately to postpone, the date of payment. The event on which payment is to occur is (completion of) the sale of the land in question. The agreement does not provide that repayment is to occur on settlement, or out of the proceeds of settlement, although it may be open to infer that the parties expected that the debt would be discharged from the proceeds of settlement. Nonetheless, the agreement does not create any interest either in the land or in the proceeds. It does not charge the land or the proceeds with repayment of the acknowledged debt. 8In those circumstances, it seems to me, the agreement that has been proved (and I repeat that the defendant, although served, has not appeared) does not sustain the caveat. 9It follows, in my view, that the plaintiff is entitled to the relief that he seeks. 10The plaintiff also seeks to recover amounts incurred or foregone by him in respect of these proceedings. They include a filing fee and other court and Registrar General's fees, as well as costs of parking, travel, and the like; and work said to have been foregone. 11I am satisfied that it is appropriate to make some sort of order but I am not satisfied that the total amount claimed is appropriate. I propose to exercise the power to fixes a lump sum and to fix that in the amount of $1,500, inclusive of court costs. 12I make the following orders: (1) Order that the defendant or some person authorised by him withdraw forthwith caveat AH456830J lodged by him against the land comprised in folio identifiers 91/1174078 and 92/1174078. (2) Order the defendant to pay the plaintiff's costs and expenses of these proceedings. (3) Fix those costs and expenses in the lump sum of $1,500. (4) Direct that these orders be entered forthwith. 13The exhibits will remain with the file. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 February 2013