Australian Secured and Managed Mortgages Pty Ltd v Horizon Hotels Pty Ltd

[2021] NSWSC 1715

Supreme Court

New South Wales

Medium Neutral Citation:

Australian Secured & Managed Mortgages Pty Ltd v Horizon Hotels Pty Ltd [2021] NSWSC 1715

Hearing dates:

31 December 2021

Date of orders:

31 December 2021

Decision date:

31 December 2021

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. The plaintiffs have leave to seek the interim orders in the summons filed 30 December 2021 ex parte.

2. An order that the operation of caveat AR561491 lodged in relation to the land known as and situated at 1/1-7 Bayswater Rd Potts Point 2011 and identified as 1/SP78890 (“Unit 1”) be extended until 5pm on 17 January 2022.

3. An order that the operation of caveat AR561492 lodged in relation to Unit 1 be extended until 5pm on 17 January 2022.

4. An order that the operation of caveat AR561493 lodged in relation to the land known as and situated at 2/1-7 Bayswater Rd Potts Point 2011 identified as 2/SP78890 (“Unit 2”) be extended until 5pm on 17 January 2022.

5. An order that the operation of caveat AR561494 lodged in relation to Unit 2 be extended until 5pm on 17 January 2022.

6. List the matter for directions before Robb J at 10am on 17 January 2022.

7. Plaintiffs to serve the defendant with the filed summons, affidavit of Suzanna Asciak sworn 30 December 2021 and Exhibit SA-01, affidavit of Kate Cooper sworn 23 December 2021 and Exhibit KC-01, and a sealed copy of these orders by:.

a.   Email to the solicitor for the defendant being Dominic Green of Green and Associates at [email protected]

To be despatched by 5pm on Tuesday, 4 January 2022.

8. Orders to be entered forthwith.

Catchwords:

LAND LAW – caveats – lapsing notice – application to extend caveats

Legislation Cited:

Real Property Act 1900 (NSW)

Cases Cited:

McGrath v McGrath [2006] NSW SC 736

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Australian Secured & Managed Mortgages Pty Ltd (First Plaintiff)
Craig Highmore (Second Plaintiff)
Horizon Hotels Pty Ltd (Defendant)

Representation:

Counsel:
K Cooper (Plaintiffs)
No appearance (Defendant)

Solicitors:
Bransgroves Lawyers (Plaintiffs)
Unrepresented (Defendant)

File Number(s):

2021/369459

Publication restriction:

Nil

Judgment

1. The plaintiffs apply by summons for the extension of four caveats lodged by them over property being units 1 and 2, 1-7 Bayswater Road, Potts Point. Lapsing notices have been served by the registered proprietor of the land who is the first defendant on the summons. Without an order extending these caveats they will lapse on 13 January 2022. Under the Equity Practice Note SC Eq 8 applications for extension of caveats should be made more than five days before the caveats are due to lapse.

2. On 17 December 2021, the solicitors for the registered proprietor sent an email to the solicitors for the plaintiffs confirming that lapsing notices had been issued. The email said that the registered proprietor did not presently have any pressing need for urgency and,

…were your clients to file a summons seeking to set the notices aside, they would not need to seek short service, and an initial directions date should be given after the break.

3. The solicitor said that it would be his preference for the matter to be dealt with after 10 January 2022 because his offices were going to be closed between 17 December 2021 and 10 January 2022.

4. The summons and supporting affidavits, which were filed on 30 December 2021, were forwarded by email to the solicitor for the registered proprietor on that day. The matter has been brought on for an urgent hearing today seeking an extension of the caveats. There is no appearance for the defendant.

5. Section 74K(3) of the Real Property Act 1900 (NSW) requires that the Court should not hear an application to extend a caveat without all interested parties having been served with copies of the application, unless the Court has made an order dispensing with service of the application. That was reinforced in a judgment of Campbell J in McGrath v McGrath [2006] NSWSC 736 at [7], where his Honour said that a caveat should not be extended on an ex parte application unless there are most unusual circumstances requiring its extension.

6. On one view, the solicitor for the defendant has been served with the summons and supporting affidavit by those having been emailed on 30 December 2021. However, if that did not constitute good service in the circumstances, because he had notified that his office would be closed until 10 January 2022, I am satisfied that there are unusual circumstances which justify the extension of the caveat on an ex parte application. If the solicitor was not duly served by the email of 30 December, that position was brought about entirely by him, by notifying that he had issued lapsing notices on the day he was about to close his office for more than three weeks.

7. It appears to me clear, from the email from the solicitor for the defendant sent 17 December 2021 that he misapprehended the procedure to be followed after the issuing of lapsing notices. He seemed to accept that there was no need for the plaintiffs to do anything prior to his return to work on 10 January. His assumption appears to have been that the caveats would remain in place until there was some determination on an application by the plaintiffs to set aside the notices. However, if the plaintiffs did not apply in accordance with the Practice Note to extend the caveats, there was a high chance the caveats would lapse.

8. I am satisfied that prima facie the plaintiffs demonstrate a caveatable interest to justify the extension of the caveats. In the case of the first plaintiff the interest appears in cl 11 of the letter of offer in relation to the loan agreement and mortgage dated 26 August 2021. In the case of the second plaintiff, the interest appears in cl 5.1 of a document entitled Introducer Mandate Agreement.

9. Given the time of year and the terms of the defendant’s solicitor’s email of 17 December 2021, I am satisfied that the balance of convenience justifies a short extension of the caveats until a time when the defendant’s solicitor is available to make submissions in relation to any further extension.

10. I note the undertaking as to damages given on behalf of the plaintiffs by the solicitor for the plaintiffs.

11. Accordingly, I make orders in terms of paragraphs 1 to 7 of the short minutes of order signed and dated by me today.

12. The proceedings are stood over before Robb J, the vacation Equity Duty Judge on 17 January 2022.

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