Angas Securities Limited v Bradley - [2015] NSWSC 294

Supreme Court

New South Wales

Medium Neutral Citation: Angas Securities Limited v Bradley [2015] NSWSC 294
Hearing dates: 11 March 2015
Date of orders: 11 March 2015
Decision date: 11 March 2015
Jurisdiction: Equity Division - Duty List
Before: White J
Decision:
Refer to para 11 of judgment

Legislation Cited: Real Property Act 1900 (NSW)
Duties Act 1997 (NSW)
Category: Procedural and other rulings
Parties: Angas Securities Limited (Plaintiff)
Robert Harold Bradley (Defendant)
Representation:
Counsel:
S Ipp (Plaintiff)
Solicitors:
HWL Ebsworth Lawyers (Plaintiff)

File Number(s): 2015/74807

JUDGMENT

HIS HONOUR: This is an application for an order under s 74K of the Real Property Act1900 (NSW) extending the operation of a caveat. I am told that the caveat, unless extended, will expire today. I note that para 9 of the affidavit in support of the application contains a typographical mistake. The application is made ex parte.
The plaintiff says that it does not know where the defendant can be served. But that is not the explanation for the lateness in the making of the application. The delay appears to be due to some confusion between the plaintiff and its solicitor in relation to the instructions to deal with the matter, and failure to appreciate the running of the time limit.
Subsection 74K(3) provides that unless the Court has made an order dispensing with service, it may not hear an application under s 74K(1), (viz. an application for an order extending the operation of the caveat), unless it is satisfied that all interested parties disclosed by the notice which gave rise to the application have been served with copies of the application before the hearing.
In Bidmonta Pty Ltd v D'Angolo [2009] NSWSC 438, Brereton J expressed the view that consistently with s 74K(4), which contemplates that an order may initially be made ex parte where appropriate, the prohibition in s 74K(3) applies to the substantive hearing of the application for an extension of time, not to an extension of time in order to allow the matter to be substantively heard.
There are, however, numerous authorities which say in substance that except in exceptional circumstances, the caveat will not be extended on an ex parte application when the caveator has left the bringing of the application until the last minute (e.g. Wonderland Business Park Pty Ltd v Hartford Lane Pty Ltd [2001] NSWSC 86; (2001) 10 BPR 18,733; Malouf v O'Donohoe [2001] NSWSC 335; Satchithanantham v National Australia Bank [2010] NSWSC 1338).
In Malouf v O'Donohoe, Young CJ in Equity, whilst refusing to extend the caveat on an ex parte application made at the last moment, made an order under s 74O allowing a fresh caveat to be lodged in identical terms on condition that that caveat would be withdrawn when the summons was returned before the Court, unless the Court extended the period of the fresh caveat. I propose to take the same course in this case.
There is an additional reason for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NSWSC 294
Decision Date: 11 March 2015

CaseChat Overview and Summary

Angas Securities Limited applied ex parte for an extension of the operation of a caveat over land registered in the name of Robert Harold Bradley. The application was made under section 74K of the Real Property Act 1900 (NSW). The Court was asked to decide whether it should grant the application for an extension of the operation of the caveat. The plaintiff argued that it did not know the whereabouts of the defendant, but the delay in making the application was due to confusion between the plaintiff and its solicitor, and a failure to appreciate the running of the time limit. The Court considered that in most circumstances, the caveat would not be extended if the application had been left until the last moment. The Court also considered that if the settlement deed and mortgage had not been stamped, the caveat would not be valid. The Court made an order that the application for an extension of the operation of the caveat be dismissed, but granted leave to the plaintiff to lodge a fresh caveat on the return date, subject to certain conditions.

The Court determined that it should not extend the operation of the caveat on an ex parte application, especially given the delay in making the application. The Court considered the relevant provisions of the Real Property Act and the case law on the matter. The Court also considered the issue of whether the settlement deed and mortgage had been stamped, and whether this affected the validity of the caveat. The Court concluded that it was appropriate to grant leave to the plaintiff to lodge a fresh caveat, subject to certain conditions. The Court also made orders in relation to service on the defendant, the return date of the matter, and the entry of the orders.

Orders