Padkohe Pty Ltd v Fletcher

[2006] NSWSC 20

CITATION:	Padkohe Pty Ltd v Fletcher [2006] NSWSC 20
HEARING DATE(S):	30 January 2006
JUDGMENT DATE :	30 January 2006
JURISDICTION:	Equity
JUDGMENT OF:	Campbell J
EX TEMPORE JUDGMENT DATE:	01/30/2006
DECISION:	Extension refused
CATCHWORDS:	CONVEYANCING – LAND TITLES UNDER THE TORRENS SYSTEM – caveats against dealings - ex parte application to extend caveat
LEGISLATION CITED:	Real Property Act 1900
CASES CITED:	Malouf v O'Donohoe [2001] NSWSC 335 Wonderland Business Park Pty Ltd v Hartford Lane Pty Ltd [2001] NSWSC 86
PARTIES:	Padkohe Pty Ltd - First Plaintiff Davis Davis - Second Plaintiff Deborah Jayne Fletcher - First Defendant Tatlers.com.au Pty Ltd - Second Defendant
FILE NUMBER(S):	SC 5298/05
COUNSEL:	V R Gray - Plaintiff
SOLICITORS:	Malcolm Johns & Co

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST

CAMPBELL J

MONDAY 30 JANUARY 2006

5298/05 PADKOHE PTY LTD & ANOR v DEBORAH JAYNE FLETCHER

JUDGMENT – Ex Tempore

1 HIS HONOUR: This is an application to extend a caveat. The caveat is one lodged against land of BG Property Investments Pty Ltd, a company which is not at present a defendant in the action in which the Notice of Motion is filed. The action in which the Notice of Motion is filed is one which seeks to make good a claim by the plaintiff to have an interest as a lessee under an unregistered lease of a certain part of the premises in Darlinghurst Road Darlinghurst.

2 The plaintiff filed a caveat seeking to protect that interest. A lapsing notice was served by the registered proprietor, BG Property Investments Pty Ltd. That lapsing notice was received in the office of the plaintiff on 9 January 2006 but not dealt with. It came to the attention of the solicitors of the plaintiff only this morning. Thus, today is the last day for extension of the caveat.

3 Section 74K Real Property Act 1900 forbids the court hearing an application to extend the caveat unless it is satisfied that all interested parties disclosed by the notice which gave rise to the application have been served before the hearing. It does contain, however, a power for the Supreme Court to make an order dispensing with service.

4 The clear practice of this Division has been that ex parte applications under this section, made on the last day, would succeed only in extraordinary circumstances: Wonderland Business Park Pty Ltd v Hartford Lane Pty Ltd [2001] NSWSC 86, Malouf v O'Donohoe [2001] NSWSC 335.

5 I am not satisfied that reason has been made out in the present case to dispense with service and make an ex parte order. It is most important, when a person is seeking to extend a caveat, to ensure that persons who might be affected by the extension of the caveat have the opportunity to be at Court, and to point to any circumstances relevant to whether the caveat should be extended. Questions about extensions of a caveat frequently arise when settlement of a conveyancing transaction is approaching, a time when interfering with the conveyancing transaction could cause damage to the parties to it. One of the reasons why section 74K(3) has been enacted is so that the Court is informed of the circumstances, as they affect all parties, before an order extending a caveat is made. A court cannot form a reliable view, without that information being available to it, whether an undertaking as to damages would adequately protect people who might be affected by the extension of the caveat.

6 For these reasons, it is not appropriate to make an order ex parte extending this caveat today. The Notice of Motion is dismissed insofar as it seeks an order dispensing with service, and insofar as it seeks an order extending the operation of the caveat.

7 I stand the balance of the Notice of Motion over to before the registrar on Thursday, 2 February 2006.

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