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

1. 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.

2. 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.

3. 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.

4. 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.

5. 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).

6. 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.

7. There is an additional reason for taking that course. Whilst it seems clear that the plaintiff has a caveatable interest as an equitable mortgagee if the mortgage is enforceable, neither the settlement deed, nor the mortgage executed pursuant to the settlement deed, have been stamped. Without finally deciding the question, it appears to me that the settlement deed and the mortgage prima facie secure an advance within the meaning of s 206 of the Duties Act 1997 (NSW), being a forbearance from requiring the payment of money owing by the defendants to the plaintiff.

8. Section 211 of the Duties Act provides that a mortgage on which duty is required by Ch 7 to be paid, “is unenforceable to the extent of any amount secured by the mortgage on which duty has not been paid”. There is a number of authorities in this Court to the effect that a caveat cannot validly be lodged claiming an interest as mortgagee under a mortgage which is unenforceable for want of stamping.

9. The question whether other copies of the settlement deed and mortgage may have already been stamped are matters which I understand the plaintiff might wish to investigate, and in any event, if not, the plaintiff may well wish to have the mortgage stamped and the settlement deed stamped not only for the purposes of such documents being admissible in evidence pursuant to s 304 of the Duties Act, but for them to be enforceable.

10. If those steps are taken before any fresh caveat is lodged, then any argument based on the possible retrospective validity of the documents once stamped could be avoided. That is an issue on which there is conflicting authority. In any event, the plaintiff can consider its position before lodging a fresh caveat.

11. For these reasons, I make the following orders:

1.    Order that the claim for relief in para 2 of the summons be dismissed.

2.    On the plaintiff by its counsel giving the usual undertaking as to damages, I give leave to the plaintiff pursuant to s 74O(2) to lodge a further caveat claiming an estate or interest in the land the subject of caveat AE437172E, that is, the same or substantially the same as the interest claimed in that caveat.

3.   The leave granted in order 2 is subject to the condition that the plaintiff withdraw the caveat to be lodged pursuant to the leave given unless on the return date the Court extends the period of such fresh caveat.

4.   Stand over the summons to 10am before the Duty Judge on 25 March 2015.

5.   Abridge the time for service on the defendants to 18 March 2015.

6.   Give the parties liberty to apply or to restore the matter on three days' notice.

7.   Order that these orders are to be entered forthwith.

Decision last updated: 23 March 2015