Armstrong Scalisi Holdings Pty Ltd ACN 114980586 v Jovic [2013] NSWSC 69

Supreme Court New South Wales

Medium Neutral Citation: Armstrong Scalisi Holdings Pty Ltd ACN 114980586 v Jovic [2013] NSWSC 69 Hearing dates: 07.02.2013 Decision date: 07 February 2013 Jurisdiction: Equity Division Before: Lindsay J Decision: Caveat extended with directions for the conduct of the proceedings generally. Catchwords: EQUITY - equitable charges and liens - extension of caveat - applicant asserts an entitlement to claim an equitable charge and/or equitable mortgage said to arise by virtue of a letter of engagement - whether there is a serious question to be tried - whether the balance of convenience favours the extension of caveat. Legislation Cited: - Cases Cited: - Texts Cited: - Category: Interlocutory applications Parties: Armstrong Scalisi Holdings Pty Ltd (Plaintiff) Danica Jovic (Defendant) Representation: Counsel: A Chee (Plaintff) J Dupree (Defendant) FECC Law (Plaintiff) Sal Russo Solicitor (Defendant) File Number(s): 2013 / 00034178

Judgment - EX TEMPORE 1These proceedings were commenced by a summons filed on 4 February 2013. 2The proceedings before the court today are limited to the hearing of an application for extension of a caveat defined by reference to par 2 of the summons. 3The parties are agreed that the hearing of that application bears the character of an interlocutory hearing, not a final one. 4The caveat the subject of the application asserts an entitlement to claim an "equitable charge and/or equitable mortgage" said to arise by virtue off an instrument described as a "terms of engagement" dated 1 December 2010 between the plaintiff, trading as CAP Accounting, and the defendant. 5There will be an issue at any final hearing as to whether or not the defendant signed the instrument described as "terms of engagement". However, it is sufficient for present purposes to record that the plaintiff has adduced evidence from a witness who deposes to having seen the defendant sign it. 6It is not necessary at this stage of the proceedings to quantify the amount of any charge to which the plaintiff may be entitled. I note, however, that the plaintiff contends that it is entitled to a charge in a total sum of $69,486.35. This sum is said to be referable to work done by the plaintiff for the defendant, and entities whose obligation for fees is said to have been guaranteed by the defendant, pursuant to the "terms of the engagement". 7Submissions have been made today by the defendant in opposition to an extension of the caveat on the basis of contentions as to the proper construction of the "letter of engagement" and the sufficiency or otherwise of evidence of work actually done. 8Submissions have also been made to the effect that I could not be satisfied on the current evidence that there is a serious question to be tried as to the identity of the parties to the "letter of engagement". 9I am satisfied that there is a serious question to be tried as to whether, on the proper construction of the terms of engagement, there is a charge in favour of the plaintiff. On the face of the evidence adduced to date, it is reasonably arguable, that there is a charge. It is also reasonably arguable that the parties to the "terms of engagement" are indeed the plaintiff and the defendant. 10The fact that the plaintiff may have conducted its business as a trustee does not detract from the fact that it was open to the plaintiff to contract with the defendant, as indeed the evidence adduced at this stage of the proceedings suggests that it did. 11There may be a question at the final hearing about the nature of the consideration, if any, passing from the plaintiff in support of the contract said to have been embodied in the terms of engagement; but, at this stage of the proceedings, there is sufficient evidence to establish the existence of a serious question to be tried. 12The question of balance of convenience needs to be considered, but no compelling submissions have been made by the defendant directed to that issue. Certainly, there has been no submission on the part of the defendant suggesting prejudice to her arising from a continuation of the caveat. The absence of any such submission was, naturally enough, noticed by the plaintiff. 13I make the following notations and orders: (1) Upon the plaintiff and David Salvatore Cassaniti jointly and severally, by their counsel, giving the usual undertakings as to damages, order that caveat A H375271 be extended until further order. (2) Order that the proceedings proceed by way of pleadings. (3) Direct that the plaintiff file and serve on or before 21 February 2013 a statement of claim. (4) Direct that the defendant file and serve on or before 1 March 2013 such defence as she proposes to file in answer to the statement of claim. (5) Direct that the proceedings be listed for directions before the Registrar at 9 am on 13 March 2013. (6) Order that the costs of today's application be the plaintiff's costs in the proceedings. (7) Orders may be entered forthwith.