Tasoulos v Tasoulos [2018] NSWSC 1307

Supreme Court New South Wales

Medium Neutral Citation: Tasoulos v Tasoulos [2018] NSWSC 1307 Hearing dates: 21 August 2018 Date of orders: 21 August 2018 Decision date: 21 August 2018 Jurisdiction: Equity - Duty List Before: Kunc J Decision: Plaintiff's notice of motion dismissed with costs Catchwords: CIVIL PROCEDURE — Stay of proceedings — Pending appeal — Multiple applications — No issue of principle Cases Cited: Christopher Tasoulas v Vasiliki Tasoulas [2018] NSWSC 86 Tasoulas v Tasoulas, unreported, Pembroke J, 6 June 2018 Christopher Tasoulas v Vasiliki Tasoulas, unreported, Parker J, 23 July 2018 Category: Procedural and other rulings Parties: Christopher Tasoulas (Plaintiff) Vasiliki Tasoulas (Defendant) Representation: Counsel: C Tasoulas (litigant in person) C.D. Wood (Defendant)

Solicitors: Colquhoun & Colquhoun (Defendant) File Number(s): 2017/258803 Publication restriction: No

ex tempore Judgment (revised) 1. By notice of motion filed in Court on 13 August 2018, the plaintiff seeks these orders: "1. Injunction to the Settlement of the sale of property at XXX Road Hunters Hill New South Wales contained in Certificate of Title Identifier XXX. Contracts for the sale of this property having been exchanged at 7 August 2018. 2. That Order 1 above be made ex-parte, pending determination of proceedings by The Court of Appeal at 10 October 2018." 1. For the reasons which follow, the plaintiff's notice of motion will be dismissed with costs. 2. The plaintiff is the son of the defendant. They are in dispute over the property referred to in the notice of motion, which is the former family home at Hunters Hill (the "Property"). The Property was originally held by the plaintiff and the defendant in equal shares as tenants in common. 3. By a transfer dated 18 November 1991 the plaintiff purportedly transferred his half interest in the Property to his mother. In a judgment delivered on 27 May 2018 Rein J did not accept the plaintiff's case that the plaintiff retained his interest in the Property because the transfer was a forgery: Christopher Tasoulas v Vasiliki Tasoulas [2018] NSWSC 861. The plaintiff has appealed that decision. The appeal is to be heard on 2 October 2018. 4. In dismissing the plaintiff's summons, Rein J granted a short stay of his orders pending the lodgement of the plaintiff's appeal. The appeal was filed. Orders were subsequently made by Lindsay J which extended a caveat by which the plaintiff claimed his interest in the Property. The issue of extension of the caveat was finally dealt with by Pembroke J in a judgment delivered on 6 June 2018: Tasoulas v Tasoulas, unreported, Pembroke J, 6 June 2018. 5. In that judgment, Pembroke J declined to extend the plaintiff's caveat over the Property. His Honour had two principal reasons for doing so: "I have reached the view that this matter should be brought to an end. My decision will not prevent the plaintiff from exercising his right to appeal but my unwillingness to grant a further stay of the orders of Rein J will not prejudice him. There are two substantial problems with the plaintiff's application. First, if the appeal succeeds, which would seem unlikely given the information that is before me, the plaintiff will have an entitlement to a constructive trust as to fifty per cent of the proceeds sale of the Hunters Hill property. That trust may extend to any subsequent property into which those proceedings have been transformed. There is no suggestion that the proceeds of sale which represent the plaintiff's hypothetical fifty per cent interest will not be obtainable. His mother, the defendant, is elderly. She wishes to sell the property in order to move into a smaller home and she has debts and liabilities which she has incurred as a result of the litigation commenced by her son against her. Those debts will be lessened if the plaintiff pays to her the indemnity costs which he has been ordered to pay. Second, the grounds on which the plaintiff's appeal is based do not appear to have any rational or probative foundation. They do not convince me that there is any prospect, let alone any arguable prospect, of success on the appeal. One ground relates to the plaintiff's complaints about a mediation, which has nothing to do with his substantive prospects. Another relates to the fact that he was forced to represent himself because of the allegedly unscrupulous behaviour of his former solicitor. But that was not shown to have resulted in any finding by the trial judge which was unsound." 1. On 4 July 2018 the Property was listed to be sold by auction later that month. 2. On 23 July 2018 Parker J dealt with a further application by the plaintiff. His Honour described that application (in paragraph [1] of his reasons) as being, "in substance, although not in form...an application by the plaintiff who was unsuccessful in the substantive proceedings, for orders in the nature of a stay pending the plaintiff's proposed appeal": Christopher Tasoulas v Vasiliki Tasoulas; unreported; Parker J; 23 July 2018. 3. The nature of the plaintiff's application before Parker J was for leave to file a further caveat. The gravamen of his Honour's decision was that leave would not be granted because the interest claimed in the proposed further caveat was identical to that which had been claimed in the caveat that that had ultimately been disposed of by Pembroke J (see paragraph [6] above). 4. In the course of his reasons, Parker J said: "19. In these circumstances the prospects of the appeal succeeding are a very important consideration. They have been analysed by Pembroke J in detail. His Honour was of the view that the proposed appeal had little if any prospects of success. I do not propose myself to engage in a further analysis of this question. The occasion for doing so was during the hearing before Pembroke J. If any complaint was to be made about his Honour's analysis, the complaint should have been made by way of appellate proceedings, rather than fresh proceedings before a different judge. In saying this, I make it clear that I have no reason whatever to doubt his Honour's analysis. 20 Accordingly, even if this application had been made in proper form, namely as an application by way of stay of orders earlier made or perhaps reinstatement of orders earlier made, it would have failed as a matter of substance. The Court cannot permit a litigant who is dissatisfied with a decision of one of the judges of the Court to bring further proceedings by way of challenge to that decision before another judge of the Court in the hope of obtaining some outcome which the litigant finds more satisfactory. The proper venue for such complaints is by appellate proceedings." 1. On 28 July 2018 an auction took place at the Property. What exactly took place at the auction is in dispute. For today's purposes it is not necessary for me to reach a conclusion one way or the other as to whose version is to be accepted. 2. The plaintiff says that he was informed by the auctioneer that the defendant had instructed the auctioneer not to accept any bids from the plaintiff because the defendant was not satisfied that the plaintiff had the wherewithal to make good on any offer to purchase the Property. The plaintiff also says that he was threatened at the auction by persons said to be in the camp of the defendant or her relatives. 3. The evidence for the defendant was to the effect that the plaintiff disrupted the auction by yelling words to the effect of, "This property has a caveat on it", "The issue has not been resolved," "There are Supreme Court proceedings." It is said for the defendant that the auction went off unsuccessfully because of the plaintiff's alleged behaviour. 4. Whatever may have happened at the auction, on 6 August 2018 the plaintiff filed his outline of submissions for his appeal in the Court of Appeal. 5. On 7 August 2018 contracts were exchanged for the sale of the Property for $2.38 million. 6. On 13 August 2018 the plaintiff filed the notice of motion which is the subject of these reasons. I have heard that notice of motion today in the course of the Duty List. The plaintiff appeared for himself. The defendant was represented by Mr C D Wood of counsel. 7. The burden of the plaintiff's reasons as to why he says he is entitled to restrain the sale of the Property is that he was, he says, prevented from bidding at the auction. Furthermore, he says that the sale price is at a considerable undervalue. He also relies on what are, in effect, the arguments he wishes to make to the Court of Appeal, rehearsing matters that were considered by Pembroke J in his Honour's judgment, including a desire on the part of the plaintiff to rely on 25 documents that he says are of great importance, but which, notwithstanding being in his possession at the time, were not adduced into evidence in the proceedings before Rein J. 8. Without any disrespect to the careful way in which Mr Wood presented the arguments on behalf of the defendant, they may be summarised as follows: 1. By reason of the decision of Rein J, the plaintiff has been found not to have any interest in the Property. That is the end of the matter. The plaintiff has no basis upon which to complain about the sale price of the Property or anything that happened at the auction. 2. The evidence makes clear that the plaintiff is in financial difficulty and would not be able to meet any undertaking as to damages. Mr Wood submitted that in a falling market (although there was no evidence of this) there was a real risk in a case such as this that the undertaking would be called upon. 3. This was the third application that the plaintiff had made in the nature of a stay. In accordance with well accepted principles concerning interlocutory applications, there had been no relevant change in circumstances since the last application (that determined by Parker J) that would warrant a fresh application except for the fact the Property had now been sold. That fact was insufficient to justify the present application. 4. In any event, the plaintiff had nothing to complain about in relation to what had occurred at the auction and its consequences, because it was the plaintiff who had disrupted the auction and, it is to be inferred, "scared off" any buyers. 1. Before turning to consider these arguments, I should record that there was no evidence before the Court concerning when the settlement of the sale will take place or as to the identity of the purchaser. With commendable candour, Mr Wood indicated he had taken a forensic decision not to adduce that evidence, referring to a fear about the plaintiff's behaviour including in the event that the plaintiff became aware of the identity of the purchaser. 2. I record these matters only to deal with one aspect of Mr Wood's submissions. He drew attention to the principle that the Court is less likely to lay an injunction where third party interests may be affected, in this case the interests of the purchaser of the Property. As will become apparent from what follows, this point is not a factor in the Court's reasoning. However, I should note that in circumstances where the defendant has declined to put before the Court evidence as to the identity of the purchaser, the Court would be less inclined to be tender about that purchaser's interests. The reason for that is that the defendant was on notice of the plaintiff's allegation that there has been an undervalued sale in all probability to a relative or privy of the defendant. Notwithstanding knowledge of that allegation, the defendant has declined to prove (if it be the case) that the purchaser is at arm's length from the defendant. 3. There are three reasons why the Court rejects the plaintiff's notice of motion. 4. First, and foremost, the Court accepts the defendant's submission that by reason of the judgment of Rein J, the plaintiff has no interest in the Property. Unless and until a decision of the Court is overturned on appeal, it is taken to be correct. 5. Second, and closely allied to the first point, the plaintiff has not shown that there is any basis upon which the Court should revisit the conclusions of Pembroke J, which I have set out above, in particular that his Honour was not satisfied "that there is any prospect, let alone any arguable prospect, of success on the appeal". 6. There was no appeal from Pembroke J's decision and I respectfully find myself in the same position as Parker J did, concluding that the present application is an inappropriate means for the plaintiff to attempt to agitate, yet again, his case that he has an interest in the Property in the face of the judgment of Rein J. The forum for that to occur is the plaintiff's appeal. 7. I add, for example, that even in relation to matters that were considered by Pembroke J, such as the 25 documents I have referred to in paragraph [17] above, there is no application by the plaintiff for leave to adduce those documents in evidence on the appeal. When I asked the plaintiff whether he had brought the documents with him today, he said he had not done so, although I should also record that he said he would be prepared to go home and collect them. He did not apply for an adjournment to do so. 8. Third: 1. even if the plaintiff had an arguable case that he had interest in the Property; and 2. assuming, without deciding, that the entry into the contract for sale of the Property is sufficient to constitute fresh circumstances warranting a further interlocutory application, the plaintiff would have failed. There are at least three reasons for this. 1. First, assuming it to be legally relevant, insofar as the plaintiff complained that he was prevented from bidding at the auction, he has adduced no evidence that he had the wherewithal to make good on any successful bid he might have made. In other words, there is no evidence from which the Court could conclude that it would have made the slightest difference if the plaintiff had in fact bid at the auction. On the contrary, the evidence suggests the plaintiff is impecunious (see paragraph [30] below). 2. Second, there is no, or at least no sufficient, evidence that the Property is being sold at an undervalue. The only evidence on the question of value is in the plaintiff's affidavit (no objection having been taken by the defendant): "5. My Outline of Submissions was filed and served 6 August 2018. The exchange for the sale of XXX Road Hunters Hill took place the very next day 7 August 2018. At $2.38 million, the property exchanged for significantly less than its market value. Comparable sales in this street: XXX Road. Sale Price - $5.8 million. XXX Road. Sale Price - $3.33 million. XXX Road. Sale Price - $3.68 million. XXX Road. Sale Price - $3.65 million." 1. That paragraph is insufficient, even at the interlocutory stage, for the Court to be satisfied that the sale is arguably at an undervalue. The mere assertion or conclusion that the sales referred to are "comparable" without any explanation of the basis on which it is said that the sales are "comparable" could not sustain a finding of a serious question to be tried. 2. Finally, I accept Mr Wood's submission that, on the evidence, the plaintiff does not appear to be in a position to satisfy the undertaking as to damages that the Court would require as a condition of granting injunctive relief. That evidence includes statements made by the plaintiff in earlier hearings before Rein J evidencing an inability to pay legal fees and fees owing to the Court. 3. The orders of the Court are: 1. The plaintiff's notice of motion filed 13 August 2018 is dismissed. 2. The plaintiff is to pay the defendant's costs of that motion.