HIS HONOUR: The application before the Court is an application by summons filed on 24 June 2024 by the plaintiff, Mr Syed, seeking an order to extend the operation of a caveat pursuant to s 74K of the Real Property Act 1900 (NSW), and such other order as the Court considers appropriate (Claim to extend the operation of the caveat).
The summons is supported by an affidavit of Mr Syed affirmed 21 July 2024.
Although it is not an order sought in the summons, the plaintiff made it clear by correspondence late yesterday to my Associate (which led to my listing the matter this morning) that he wished to seek some sort of legal assistance in circumstances in which he was no longer being represented (Claim for pro bono assistance).
On the hearing of the application, the plaintiff sought permission to have assistance in indicating matters to the Court by his friend John Chabailuk. I permitted such assistance by Mr Chabailuk. I considered that, in the circumstances, there was no need for me to determine whether the assistance was in the nature of that which might be permitted as a "McKenzie friend".
[2]
Background
Mr Syed indicates in his affidavit that he has been a close family friend of Fahmid Rahman (Mr Rahman) and the defendant, Mita Farjina Rahman (Mrs Rahman), since 2002.
Syed v Afroz [2024] NSWSC 797 | Case summary | Zoe
There have been family law proceedings as between Mr and Mrs Rahman.
Mr Syed says that his wife and he invited Mr Rahman and his two children into their home, where they have been staying since 2020, and provided them with "all necessary support" as close family friends.
He deposes to there being some arrangement between Mr Rahman and himself in relation to the payment of rent.
The affidavit annexes a personal loan agreement dated 25 April 2024 between the plaintiff as lender and Mr Rahman as borrower. The loan agreement is said to be for an amount of $136,500, and to be on the terms set out in the document which is Annexure A to the affidavit.
The agreement indicates that there shall be no interest associated with the principal sum, and the borrower's only obligation to the lender is to repay the principal balance. The term of the loan agreement is said to be by reference to an event rather than a date, namely that the total amount of the borrowed money, including principal and interest (which, given the earlier provision, appears to be nil), is to be due and payable after "sold of borrower properties at Roselands".
The agreement has been signed on the second page. Below the signatures, there is a calculation of the loan amount by reference to two distinct matters. First, an amount of rent of $70 per day for 1,450 days, amounting to $101,500, between March 2020 and April 2024. Secondly, amounts borrowed in cash on 13 occasions, the lowest of which is $1,500 and the highest of which is $3,400, between 20 March 2020 and January 2024.
The plaintiff provided to the Court this morning a form of orders made by Judge Dunkley in the Federal Circuit and Family Court of Australia (Division 2) which indicate, amongst other things, that Mrs Rahman was appointed as the sole trustee to act on the sale of two properties at Stephenson Street, Roselands.
The plaintiff states that on 9 March 2024, Mrs Rahman auctioned one of the Roselands properties without notifying Mr Rahman. I will refer to that property hereon as the "Roselands Property". Mr and Mrs Rahman are registered as joint tenants of the Roselands Property.
The matter has been mentioned in court this morning because the plaintiff seeks: first, to have the caveat he has lodged on the Roselands Property extended; and secondly, to seek legal assistance in circumstances where the solicitor who had filed the summons on his behalf, Mr Chaudhry, appears to no longer be acting for or assisting the plaintiff.
The plaintiff has provided to the Court the form of the caveat lodged in respect of the Roselands Property. The caveat was placed on the title on 15 May 2024.
On 12 June 2024, the plaintiff received a notice of proposed lapsing of the caveat. The lapsing notice indicates that the NSW Land Registry Services proposes to act upon the lapsing of the caveat upon the expiration of 21 days after service of the notice upon the plaintiff, unless an order extending the operation of the caveat is obtained from this Court, and such order (or an office copy of it) is lodged within that period.
On 19 June 2024, the plaintiff sent an email to Ms Fasi, the solicitor apparently acting for Mrs Rahman, requesting for the lapsing notice to be withdrawn. He asserts that there has been no response to that email.
[3]
Claim to extend the operation of the caveat
The caveat claims an estate or interest by virtue of an agreement between the plaintiff and Mr and Mrs Rahman. The details supporting the claim make reference to a financial agreement in respect of $36,500. The plaintiff tells me this morning that that figure is actually mistaken, and the correct figure is $136,500. Given that, it appears that the caveat is referable to the personal loan agreement between Mr Rahman and the plaintiff to which I have referred above.
Ordinarily, the mere borrowing of money does not give rise to a caveatable interest in land. It is clear that the mere fact that a caveator is a creditor of the registered proprietor does not give rise to a caveatable interest in land, as a caveat cannot be lodged to protect a mere contractual or personal right: see Mastronardo v Remo West Ryde Pty Ltd [2024] NSWSC 8 at [22], citing Shannon Lindsay, Caveats Against Dealings in Australia and New Zealand (1995, Federation Press) at 112, and Brendan Edgeworth, Butt's Land Law (7th ed, 2017, Thomson Reuters) at [12.990].
On the face of the agreement, there is nothing to suggest that there is an agreement between the parties for the plaintiff to have an interest in the Roselands Property.
[4]
Claim for pro bono assistance
The Court has power under r 7.36(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) to refer a litigant to the registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance, if it is satisfied that it is in the interests of the administration of justice to do so.
For the purposes of considering whether or not to make such an order, the Court may take into account a number of things, including the capacity of the litigant to obtain legal assistance outside the scheme, the nature and complexity of the proceedings, and any other matter that the Court considers appropriate: r 7.36(2) UCPR.
The Court may not refer a litigant for assistance if the litigant has obtained assistance under a previous referral during the immediately preceding period of three years, unless there are special reasons justifying a further referral: r 7.36(2A) UCPR.
The referral may be made for various kinds of assistance, including: advice in relation to the proceedings; representation on a directions hearing, interlocutory or final hearing; drafting or settling documents; and representation generally in the conduct of the proceedings: r 7.37 UCPR.
The referral does not mandate that assistance must be provided or give any "guarantee" that such assistance will be provided. Nonetheless, if a barrister or solicitor agrees to accept a referral, he or she must provide assistance to the litigant in accordance with the referral, subject to the provisions of r 7.39: r 7.38 UCPR.
A barrister or solicitor who has agreed to accept a referral may cease to provide legal assistance in the circumstances specified in UCPR r 7.39.
The UCPR make further provision for applications for leave by a barrister or solicitor to cease providing legal assistance, and provision for costs and disbursements: rr 7.40, 7.41, 7.42 UCPR.
Having regard to the matters in the plaintiff's affidavit, the proceedings have some complexity to them, at least in terms of the relationship as between Mr and Mrs Rahman and the circumstances in which Mr Rahman and the children came to live with the plaintiff.
There is no suggestion that the plaintiff has sought prior assistance.
In the exigencies of this matter, I propose to make a referral to the registrar for the registrar to deal with the matter in accordance with the UCPR provisions that I have indicated.
[5]
Orders
The orders that I make are as follows:
1. Notes that the plaintiff by his summons seeks an order extending the operation of a caveat and, based on the materials before the Court, the Court has expressed the provisional view (but not decided) that the personal loan agreement referred to in the caveat does not give the plaintiff a caveatable interest in the matter.
2. Notes that the plaintiff also, after email notice to the Associate to Meek J, seeks a referral for legal assistance.
3. Notes that on this application the plaintiff has had assistance in indicating matters to the Court by his friend John Chabailuk.
4. Notes that on the application the plaintiff has relied upon:
1. his affidavit affirmed 24 June 2024 (which affidavit includes the form of personal loan agreement said to support the caveat and a title search of the property in respect of which the caveat has been lodged);
2. Exhibit P1, being a copy of an order of Judge Dunkley of the Federal Circuit and Family Court of Australia (Division 2) dated 24 March 2023; and
3. Exhibit P2, being a copy of the caveat AU70421 dated 15 May 2024.
1. Orders pursuant to r 7.36 of the UCPR that the plaintiff be immediately referred to the Registrar for referral to a solicitor or barrister on the Pro Bono Panel for the purposes of advising the plaintiff and such other kind of assistance that is permissible under r 7.37 of the UCPR.
2. Notes the referral is in a context of urgency in which the plaintiff states he received a notice to lapse the caveat on 12 June 2024 and upon the expiration of 21 days after the service of the notice upon the plaintiff the operation of the caveat will lapse, unless an order extending the operation of the caveat is obtained from the Court and is lodged with the Land Registry Services within that period, which will be either on 3 July 2024 or if the date of service is excluded on 4 July 2024.
3. Stands the matter over to the Equity Registrar on 3 July 2024 for mention and, if the plaintiff does seek to continue with relief to extend the operation of the caveat, for potential referral to the Equity Duty Judge on that date.
4. Directs that the plaintiff serve a copy of the summons, a copy of the documents in order 4 and a copy of these orders on the defendant on or before 9am on Monday, 1 July 2024.
5. Orders that the orders may be entered forthwith.
[6]
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Decision last updated: 28 June 2024