Kitanovski v Ibrahim

These proceedings concern a residential property in Yarraga Place, Yowie Bay, being the land contained in folio identifiers 27/219700 and 28/219700.

By an Amended Summons filed on 13 August 2021, the plaintiff, Ms Mary Kitanovski, seeks orders in the nature of specific performance in respect of a contract for sale of the land she entered into as purchaser with the second defendant, Ms Jamelie Lahood, as vendor. The contract was entered into on 8 November 2019 for a purchase price of $2,805,000.

Ms Lahood was served with the Summons shortly after the commencement of the proceedings in February 2021. She has not filed a notice of appearance, and has not sought to participate in the proceedings as a party. However, it is clear (including from an affidavit she made on 17 September 2021 which was filed by the plaintiff) that Ms Lahood is aware of the proceedings and that Ms Kitanovski is seeking specific performance of the contract for sale. There is evidence that Ms Lahood would be willing to complete the contract were it not for the existence of certain caveats that have been lodged on the titles, in particular, caveats lodged by the first defendant, Mr Fadi Ibrahim, and the third defendant, the Commissioner of Taxation. Ms Kitanovski also seeks orders pursuant to s 74MA of the Real Property Act 1900 (NSW) that those caveats be withdrawn so as to facilitate completion of the contract for sale. Those orders are resisted by the caveators, primarily on the ground that the purchase price under the contract was significantly below the prevailing market value of the property.

In circumstances where there was no opposition to the specific performance case, the question whether the caveats should be maintained or removed became the central focus of the hearing.

Ms Kitanovski has lived at the property with her husband and family since 2012. She deposed that she does not have a formal lease, but pays amounts of “rent” to Ms Lahood from time to time. She describes Ms Lahood as a friend, and someone with whom she has regular social contact.

Ms Kitanovski deposed that in 2016, Ms Lahood informed her that she (Ms Lahood) owed a lot of money to the Australian Taxation Office (“ATO”). In fact, Ms Lahood had entered into a Deed with the Commissioner of Taxation on 25 February 2016 which recited, amongst other things, that as a result of the issue of certain Notices of Assessment, Ms Lahood became liable to pay a total amount in excess of $16,600,000. The Deed provided for Ms Lahood to grant a mortgage in favour of the Commissioner of Taxation over various properties, including the Yowie Bay property. Ms Lahood executed such a mortgage on about 25 February 2016.

On about 3 May 2016, the Commissioner of Taxation lodged the caveat that is the subject of these proceedings (AK399376). By the caveat, the Commissioner claims the interest of an unregistered mortgagee in respect of various properties, including the Yowie Bay property, by virtue of the Deed and the grant of the mortgage.

The Deed contained a warranty by Ms Lahood to the effect that apart from registered interests discoverable by a title search made prior to the date of the Deed, she held the entire legal and equitable title and interest in the properties (see cl 5.11.2). The Deed further provided that Ms Lahood would not sell any Security Property (including the Yowie Bay property) without the prior written consent of the Commissioner of Taxation, which consent may be provided in the Commissioner’s absolute discretion (see cl 5.14).

Despite the terms of the warranty contained in cl 5.11.2 of the Deed, it appears that on about 15 April 2015, Ms Lahood had entered into a Loan Agreement with Mr Ibrahim, in respect of a principal sum of $2,900,000, that provided for a charge over all Ms Lahood’s property in favour of Mr Ibrahim (see cl 11.2). The Loan Agreement further provided that Ms Lahood consented to Mr Ibrahim lodging a caveat over any of her real property. However, Mr Ibrahim’s caveat, that is the subject of these proceedings (AK574406), was not lodged until 6 July 2016. By the caveat, Mr Ibrahim claims an “equitable interest” in various properties, including the Yowie Bay property, by virtue of a Loan Agreement with Ms Lahood dated 5 July 2016. As explained by Mr Ibrahim in his affidavit of 28 July 2021, the 5 July 2016 date was an error, the intended date being 15 April 2015. It appears that on 1 August 2015, Ms Lahood executed mortgages over the Yowie Bay property in favour of Mr Ibrahim.

In about February 2017, Ms Kitanovski and Ms Lahood had a conversation about a sale of the Yowie Bay property. In the course of the conversation, Ms Lahood told Ms Kitanovski that whilst she would be happy if Ms Kitanovski purchased the property, she would need to sell at market price and the ATO would need to be satisfied that any sale was at arm’s length. Ms Lahood also told Ms Kitanovski that the property would be listed with an agent and placed on the open market. Ms Kitanovski deposed that, later in February 2017, the property was listed with McGrath of Brighton-Le-Sands.

Ms Kitanovski deposed that in about late April 2017, she informed Ms Lahood that she had been speaking to the agent (who was asking her to compete against other offers) and had made an offer of $2,805,000. Ms Lahood accepted the offer, and a contract for sale was entered into on 26 April 2017 at that price, with a deposit of $140,250. The title search annexed to the contract revealed the existence of a mortgage in favour of Westpac Banking Corporation (“Westpac”) (AG852141), a caveat lodged by the Chief Commissioner of State Revenue in respect of land tax (AK30740), and the caveats of the Commissioner of Taxation and Mr Ibrahim.

Ms Lahood took steps to have a lapsing notice served in respect of Mr Ibrahim’s caveat. That prompted Mr Ibrahim to commence proceedings against Ms Lahood and others in this Court on about 19 June 2017 (proceedings 2017/183155). On 20 June 2017, an order was made extending the operation of the caveat until 23 June 2017. On that day, an order was made extending the operation of the caveat until further order. The orders extending the operation of the caveat were made upon the basis of the giving of the usual undertaking as to damages. It seems that the order made on 23 June 2017 has remained in place, and is the subject of a Request (AM506023) that is noted on the title.

Ms Kitanovski served a Notice to Complete on about 13 August 2017. The notice was not complied with. On 27 November 2017, Ms Kitanovski served a Notice of Rescission of the contract.

On 18 March 2019, Mr Ibrahim commenced fresh proceedings against Ms Lahood in this Court (proceedings 2019/85959) seeking a monetary judgment of about $4,400,000 for amounts said to be owing under the 2015 Loan Agreement. Those proceedings were eventually discontinued on 10 November 2020 on the basis that all previous orders were discharged and that there be no order as to costs.

In the meantime, on 8 November 2019, Ms Kitanovski and Ms Lahood entered into another contract for the sale of the Yowie Bay property. The price was again $2,805,000. The deposit was $140,000. Ms Kitanovski paid the deposit (using funds borrowed from a friend) into the trust account of Ms Lahood’s solicitors. Ms Kitanovski paid the stamp duty on the contract on 6 July 2020.

Ms Kitanovski deposed that she insisted that the price under the November 2019 contract be the same as that provided for in the April 2017 contract. She considered that she should not pay any more than that amount as she had been ready to purchase at that price in 2017. Ms Lahood was evidently prepared to accept the price of $2,805,000. There is no evidence that the property was placed on the open market in 2019.

The November 2019 contract has not been completed. In addition to the mortgage to Westpac, the caveats of the Commissioner of Taxation and Mr Ibrahim remain on the title. Further, in September 2020, a fresh caveat (AQ396312) was lodged by the Chief Commissioner of State Revenue.

In July-August 2020, the solicitors acting for Ms Kitanovski made proposals that the contract be allowed to complete on the basis that the net proceeds of sale after payment of all statutory charges and the Westpac mortgage be held by the ATO pending the determination of any priority dispute as between the remaining caveators. These proposals were not accepted. Ms Kitanovski has since maintained the position that she wants the contract to settle.

Upon any settlement, outstanding Council rates and land tax would need to be paid, and so too would the amount owed to Westpac pursuant to its mortgage. The evidence concerning land tax is not entirely clear, but it seems that the total of the above amounts may be in the order of $2,735,000. If that were so, the proceeds of sale that would remain available to satisfy the competing claims of the Commissioner of Taxation and Mr Ibrahim would be no more than about $70,000. It is in that context that the caveators contended, as a central argument against the making of orders for removal of the caveats, that the November 2019 sale was at a price significantly below the prevailing market value.

Evidence was given by two registered property valuers, namely, Mr John Sanidas (who was called by Ms Kitanovski) and Mr Paul Waterhouse (who was called by the Commissioner of Taxation).

Mr Sanidas provided a valuation report to Ms Lahood on about 23 December 2019 in which he expressed the opinion that the Yowie Bay property had a value as at 21 December 2019 of $3,000,000. The report was prepared for the purpose of “Reliance by Commonwealth of Australia (Commissioner of Taxation)”. The methodology used by Mr Sanidas involved a direct comparative sales approach (as adjusted for condition, locality, access and land area) and a summation approach. On that basis, Mr Sanidas derived a land value of $2,500,000 and a building value of $500,000, giving a total value of $3,000,000.

In his affidavit dated 16 December 2021, Mr Sanidas deposed that having reviewed his report he remained of the opinion that the value of the property on 21 December 2019 was $3,000,000. Mr Sanidas also referred to an additional comparable sale which he said supported that valuation. Mr Sanidas further expanded upon the condition of the improvements on the property, and stated that he formed the opinion that the value of the property was reduced by approximately $1,000,000 (or approximately 30%) due to the condition of the improvements.

Mr Waterhouse produced a valuation report dated 25 November 2021 in which he expressed the opinion that the Yowie Bay property had a value as at 8 November 2019 (the date of the contract) of $4,000,000. The report also included opinions as to the value of the property as at 26 April 2017 (the date of the earlier contract) and 25 November 2021. The methodology was stated to be the direct comparison method based on comparable sales evidence, with allowances made for matters such as location, date of sale, areas and condition. In the latter regard, Mr Waterhouse estimated that remedial works costing about $400,000 would be required. That estimate was based on Rawlinsons Cost Construction Guide, but Mr Waterhouse stressed that he was not an expert in the field of estimating construction costs.

After meeting in conclave, and thereafter engaging in further discussions, the experts produced a Joint Report dated 4 March 2022. The Joint Report reveals that the experts reached agreement on several matters, including as to valuation approach. They agreed that the conventional direct comparison valuation method should be used to assess the value of the property. They further agreed that adjustments should be applied to the sales evidence to cater for differences in time, location, condition (and compliance) and land area. On that basis, the valuers agreed that the market value of the property in November-December 2019 was $3,500,000.

The valuers further agreed, inter alia, that significant remedial works were required; some outstanding repair works may be unaccounted for; and some of the improvements may not have the required approvals and certifications. I note that Mr Sanidas considered the repair costs to be $1,000,000, whereas Mr Waterhouse considered those costs to be $400,000. The valuers agreed that appropriate expert advice may be required in relation to those matters. The valuers stated that their joint opinion (and their individual valuation reports) must accordingly be regarded as provisional assessments of value. The Joint Report also includes a number of matters upon which there was disagreement between the valuers in relation to their earlier reports. It is not necessary to refer here to those matters of disagreement.

The valuers gave further evidence in a concurrent session. Mr Sanidas took issue with Mr Waterhouse’s current valuation, stating that account did not appear to have been taken of recent falls in market values. However, this criticism was misguided, as Mr Waterhouse referred to an approximate 3% drop in the market since May 2022.

Mr Waterhouse was challenged as to his opinion of value as at 26 April 2017 ($3,900,000). He agreed that he was not aware of the April 2017 contract or of the fact that it had been entered into after the property had been on the market for some time. Mr Waterhouse agreed that these were relevant matters. He said that he would normally speak to the selling agents about the marketing campaign. He noted that two (incorrectly transcribed as “ten”) months is not a long time for a property like that to be on the market. Mr Waterhouse agreed that if he was satisfied that there was a good marketing campaign and they had a “decent number” of people through the property, a contract entered into at a price of $2,850,000 (sic) would likely have caused him to value the property at $2,850,000. Mr Waterhouse was not prepared to accept that if that was the value in April 2017, the value of the property would not have changed significantly as of November 2019. After being questioned about the uncertainties present in the valuation due to the need for significant remedial works, Mr Waterhouse ultimately accepted that the range would be between $3,000,000 and $4,000,000 “and we settled at 3.5”. Finally, I note that Mr Sanidas did not accept that the present value of the property would “well exceed” $3,500,000.

This claim can be disposed of briefly. There is no reason to doubt that the contract for sale entered into in November 2019 is valid. It is a contract of a type that is commonly regarded as appropriate for specific enforcement. Ms Kitanovski has paid the deposit, and the requisite stamp duty, and is not in breach of the contract. She has adduced evidence that suggests that she is not only willing, but also ready and able, to complete the contract. The impediment to completion has been Ms Lahood’s failure to take steps to be in a position to pass legal title free of any mortgage or other relevant interest.

As already mentioned, Ms Lahood has not sought to oppose Ms Kitanovski’s claim. Indeed, there is evidence to the effect that she would be willing to complete the contract provided the caveats of Mr Ibrahim and the Commissioner of Taxation are removed.

In these circumstances, I consider it appropriate to make orders in the nature of specific performance of the contract for sale. The making of such orders would not inevitably be futile, even if I concluded that orders should not be made as sought for the removal of the caveats. I turn now to that issue.

These claims are made pursuant to s 74MA of the Real Property Act. Section 74MA relevantly provides:

I should state at the outset that in my view Ms Kitanovski has standing to make the applications. She is a person who is or claims to be entitled to an estate or interest in the Yowie Bay property, which is land described in the caveats that have been lodged by Mr Ibrahim and the Commissioner of Taxation pursuant to s 74F of the Real Property Act. The estate or interest claimed by Ms Kitanovski is that of a purchaser under a subsisting contract for sale of the land.

The principles that apply on applications under s 74MA of the Real Property Act are well established. They were authoritatively stated by the Court of Appeal in Hanson Construction Materials Pty Ltd v Roberts (2016) 93 NSWLR 1; [2016] NSWCA 240 in the judgment of Sackville AJA (with whom Beazley P and Payne JA agreed). In that case, Sackville AJA stated at [58]-[62] and [77]-[79] (footnotes omitted):

An onus is thus cast upon the caveator to satisfy the Court that there is a serious question to be tried as to the existence of the interest claimed in the caveat, and that the balance of convenience favours the continuation of the caveat.

Ms Kitanovski accepts that there is a serious question to be tried as to the existence of the interest claimed by the Commissioner of Taxation in its caveat. That concession was properly made. The evidence is clear that in February 2016 Ms Lahood entered into the Deed with, and executed a mortgage in favour of, the Commissioner of Taxation. Moreover, the evidence suggests that Ms Lahood is presently indebted to the Commissioner in an amount that approaches $25,000,000.

Ms Kitanovski submitted that there was no serious question to be tried as to the interest claimed by Mr Ibrahim in his caveat. It was submitted that the caveat was defective insofar as it merely claimed an “equitable interest”. It was also put that the proceedings commenced by Mr Ibrahim in 2019 were subsequently discontinued by him, and that he has not explained his position in that regard.

It is true that the description of the claimed interest is problematic and could justify the making of an order for the removal of the caveat (see, for example, Sutherland v Vale (2008) 14 BPR 26,255; [2008] NSWSC 759 at [12]-[14]). However, the references in the caveat to a Loan Agreement suggest (on an admittedly generous reading) that the equitable interest claimed is an interest in the nature of a charge. Further, the operation of the caveat has been extended until further order by an order made in the 2017 proceedings commenced by Mr Ibrahim, and it seems that that order remains in place. When regard is also had to the documentary evidence of the Loan Agreement, which plainly provides for a charge, including over the Yowie Bay property, I am satisfied that there is a serious question to be tried as to the existence of a charge in favour of Mr Ibrahim.

Being satisfied as to the existence of a serious question to be tried in relation to both caveats, it is necessary to move to consider the balance of convenience.

On that question, the Commissioner of Taxation submitted that it has a legitimate interest in maximising the amount of surplus funds that would be available upon a proper sale of the Yowie Bay property, but the evidence establishes that the sale price under the November 2019 contract is well below the market value. It was submitted that in light of the conclusion expressed in the Joint Report, the Court should accept that when the contract was entered into, the market value of the property was $3,500,000, a figure almost $700,000 higher than the contract price. Mr Ibrahim made a submission to the same effect. The Commissioner of Taxation further submitted that were it ordered to remove the caveat to enable the sale to complete, it would suffer irremediable prejudice to that extent. It was pointed out that under the terms of the Deed, Ms Lahood was only permitted to sell the property with the prior written consent of the Commissioner. There is no suggestion that such consent, or indeed any consent, was given by the Commissioner of Taxation to the sale to Ms Kitanovski.

Ms Kitanovski submitted that the sale is a proper sale to a bona fide purchaser and that the Court should not accept that the property is being sold for “below market consideration”. Ms Kitanovski submitted that:

I accept that Ms Kitanovski is a bona fide purchaser and that she herself has not acted in any improper manner in connection with the contract for sale she entered into with Ms Lahood. However, having considered the valuation evidence, together with other relevant evidence (including the circumstances surrounding the making of the April 2017 contract), I do not accept that the November 2019 sale was not for “below market consideration”. In my opinion, and notwithstanding the evident difficulties involved in assessing the market value of the property in the condition it is in, the market value of the property in November 2019 was about $3,500,000.

I do not think that much weight can be placed upon the sale price of $2,805,000 that was agreed in April 2017. I accept that the property had been listed with an agent, but there is no cogent evidence of the nature and extent of any marketing campaign, nor the extent of apparent interest (including offers to purchase) from other potential purchasers. To paraphrase Mr Waterhouse’s evidence, it was not established that there had been a good marketing campaign, with a “decent number” of people through the property. Whether the condition of the property may have deterred the making of offers seems to me to be largely speculative.

Nor do I think that much weight can be placed upon Mr Sanidas’ valuation report of December 2019, in circumstances where he has later agreed with Mr Waterhouse that the market value was $3,500,000 and, further, seems to have moved away from a summation approach. It is true that the condition of the property, and the uncertainty concerning the likely cost of necessary remedial works, renders the task of valuation less certain, to the point that the valuers considered their assessments to be “provisional”. In that regard, I note that Mr Waterhouse was prepared to countenance a valuation range of $3,000,000 to $4,000,000. Nevertheless, the Joint Report is the result of considerable discussion between the experts, and it reveals that there was ultimately a large area of common ground in relation to valuation approach and as to the most useful comparable sales. Despite the uncertainty inherent in the task, the agreed figure of $3,500,000 (at the mid-point of the range) ought be accepted as the approximate market value of the property in November 2019.

It follows that the November 2019 contract for sale was not only entered into without the prior written consent of the Commissioner of Taxation, it was entered into for a price approximately $700,000 below the prevailing market value. That is a significant difference.

The removal of the caveats of Mr Ibrahim and the Commissioner of Taxation to facilitate completion of that sale would thus cause substantial prejudice to be suffered by whichever of them could assert priority next after payment of land tax, Council rates and Westpac as the registered mortgagee. It is of course not necessary to determine any such question of priority on these applications. I think it is sufficient to state that the question of priority as between Mr Ibrahim and the Commissioner of Taxation appears to be reasonably arguable either way. Even though Mr Ibrahim’s interest was apparently created in April 2015, he failed to lodge his caveat until July 2016, well after the Commissioner of Taxation entered into the Deed and took a mortgage over the property. Moreover, the terms of the Deed suggest that the Commissioner, in entering into it, may have placed some reliance upon the state of the Register.

In these circumstances, it seems to me that the balance of convenience would be in favour of continuation of the caveats, as that would avoid the prejudice that would be suffered by either Mr Ibrahim or the Commissioner of Taxation if their caveats were ordered to be withdrawn to facilitate completion of a sale at a price substantially below market value.

If that is where matters had been left I would have declined to order that the caveats be withdrawn. In accordance with the principles cited earlier, each caveator would have not only established that there was a serious question to be tried as to the existence of the claimed interest, but also that the balance of convenience favoured continuation of the caveat.

However, towards the end of his closing submissions in reply, counsel for Ms Kitanovski indicated that if the Court found against her on the question of whether the sale was at an undervalue, Ms Kitanovski would be willing to submit to a condition of relief under s 74MA that she pay into Court the difference between the market value of the property (at the date of the contract) as found by the Court, and the contract price. It was submitted that such a payment would effectively operate as a form of alternative security, and put the caveators in the position they would have been in had the property been sold in November 2019 for its true value.

The Commissioner of Taxation expressed opposition to the grant of relief on such a condition. It was submitted that the Deed entered into with Ms Lahood was intended to ensure that any surplus proceeds of sale be paid to the Commissioner, but allowing the sale to complete as suggested would leave the Commissioner in a priority dispute over the surplus funds. It was further submitted that the market value of the property had increased since November 2019.

It does appear that the Deed was entered into on the basis that Ms Lahood held the entire legal and equitable title and interest in the property apart from interests then discoverable by a title search (see cl 5.11.2). Accordingly, it was envisaged that the Commissioner’s interest as a mortgagee would rank next in priority after those discoverable interests. It is also correct that Ms Lahood’s dealings with Mr Ibrahim put him into a position to compete with the Commissioner in relation to any surplus proceeds of sale. However, those dealings occurred in 2015, prior to entry into the Deed, and independently of the sale in November 2019 that Ms Kitanovski seeks to enforce. In other words, the potential for a priority dispute with Mr Ibrahim exists whether the property is sold pursuant to the November 2019 contract or otherwise (such as by Westpac as mortgagee). I therefore do not think that the Commissioner’s objection that it would be confronted with a priority dispute has force.

Where there is a seriously arguable or even undisputable caveatable interest, the Court nonetheless retains a discretion, based on the balance of convenience, as to whether to maintain the caveat or require its removal (see Buchanan v Crown & Gleeson Business Finance Pty Ltd (2006) 13 BPR 24,513; [2006] NSWSC 1465 at [8] per Brereton J – in a passage expressly approved in Hanson Construction Materials Pty Ltd v Roberts (supra) at [72]). Such a question arises in this case, in the context of an application for the removal of caveats that claim security interests, so as to allow completion of a contract for sale. I have found that the contract price was about $700,000 below the prevailing market value, but Ms Kitanovski has indicated that she would be prepared to pay that difference into Court as a condition of obtaining relief for the removal of the caveats. The position of the caveators would be the same in substance as if the sale had been made at market value. Whilst Ms Lahood was required (but failed) to obtain the prior written consent of the Commissioner of Taxation to the sale, and it may have been open to the Commissioner to withhold consent, any prejudice to the Commissioner (or to Mr Ibrahim) that would arise from the sale is effectively removed by the imposition of a condition as proposed by Ms Kitanovski. On the basis that any surplus proceeds remaining after payment of land tax, Council rates and Westpac are also required to be paid into Court, the caveators would be in the same position they would have been in had the property been sold in November 2019 for its market value. That is to say, the caveators would not suffer practical detriment if their caveats were removed, subject to that condition, to allow the sale to complete (see Hanson Construction Materials Pty Ltd v Roberts (supra) at [82]).

I have not overlooked the evidence of Mr Waterhouse to the effect that the property has increased in value since November 2019. However, this evidence was adduced only days before the hearing and Mr Sanidas did not have an adequate opportunity to respond to it. I note that Mr Sanidas did not accept that the present value was well in excess of $3,500,000. I note further that the evidence, so far as it goes, suggests that the value has been falling in recent times. In any event, the Court is dealing with an application under s 74MA in the context of a subsisting contract for sale, not a potential sale that might occur at some time in the future.

In all the circumstances, I consider that the imposition of a condition upon relief, as suggested by Ms Kitanovski, alters the assessment of the balance of convenience so that the balance is no longer in favour of continuation of the caveats. I think that if (in addition to any surplus proceeds remaining after payment of land tax, Council rates and Westpac) the sum of $700,000 were to be paid into Court to stand as a form of alternative security available to be claimed by Mr Ibrahim or the Commissioner of Taxation, the balance of convenience would be in favour of removal of the caveats.

Accordingly, in addition to the foreshadowed orders in the nature of specific performance, the Court will make orders under s 74MA of the Real Property Act for the withdrawal of the caveats lodged by Mr Ibrahim and the Commissioner of Taxation, provided that any surplus proceeds remaining after payment of land tax, Council rates and Westpac be paid into Court, and subject to a condition that, on or prior to the completion of the November 2019 contract for sale, Ms Kitanovski pay into Court the sum of $700,000, such sum to be held pending determination of the competing claims of Mr Ibrahim and the Commissioner of Taxation.

As for costs, my preliminary view is that Ms Lahood should pay Ms Kitanovski’s costs of the specific performance claim, and that Ms Kitanovski should pay the costs of Mr Ibrahim and the Commissioner of Taxation in respect of the s 74MA applications. Ms Kitanovski would not have succeeded on those applications were it not for the proffering of the condition upon relief which has ultimately been granted. That did not occur until the final few minutes of the hearing.

I direct the parties to confer as to the form of orders (including as to costs), and submit proposed forms of orders within 7 days. If there is any disagreement as to the appropriate orders for costs, further directions will be made for the determination of that matter.