Barkworth Olive Groves v De Napoli

[2010] NSWSC 1416

CITATION:	Barkworth Olive Groves v De Napoli [2010] NSWSC 1416
HEARING DATE(S):	30 November 2010
JUDGMENT OF:	Ball J
EX TEMPORE JUDGMENT DATE:	30 November 2010
DECISION:	1. Order pursuant to section 74MA of the Real Property Act 1900 that on or before 2.00 pm on 30 November 2010 the defendant withdraw caveat number AF898487C over the plaintiff's land. 2. Order that the defendant, his servants and agents be restrained from lodging any caveat in respect of the land or any part thereof based upon the same grounds set out in caveat number AF898487C or claiming an interest to the same effect as the interest therein claimed.
CATCHWORDS:	REAL PROPERTY – caveats – application pursuant to s 74MA of the Real Property Act that defendant withdraw caveat over property owned by plaintiff – where plaintiff has been served with notice to complete in relation to sale of property – caveat not in valid form
LEGISLATION CITED:	Real Property Act 1900 (NSW)
CATEGORY:	Procedural and other rulings
PARTIES:	Barkworth Olive Groves Limited ACN 076 441 551 (Plaintiff) Antonio De Napoli (Defendant)
FILE NUMBER(S):	SC 2010/394678
COUNSEL:	B J Miller (Solicitor for the Plaintiff) No Appearance (Defendant)
SOLICITORS:	Garland Hawthorn Brahe (Plaintiff) No Appearance (Defendant)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BALL J

30 NOVEMBER 2010

2010/394678 BARKWORTH OLIVE GROVES LIMITED v ANTONIO DE NAPOLI

EX TEMPORE JUDGMENT

1 This is an application pursuant to s 74MA of the Real Property Act 1900 that the defendant withdraw a caveat that he has lodged over property belonging to the plaintiff which is situated at Twin Waters. The plaintiff has entered into a contract for sale of the property. Settlement was originally due to occur on 30 July 2010. However, the purchaser failed to settle at that time. The plaintiff served a notice to complete and settlement of the sale was set for 24 November 2010. Shortly before settlement, the defendant lodged a caveat in respect of the property.

2 It appears that the address given by the defendant on the caveat is not his real address because, although the level of the building that is given as part of the address exists, it is not possible to get access to that level and it appears that that level is vacant. The nature of the estate or interest in the land claimed in the caveat is expressed in these terms:

“TRADE DOLLARS IN THE SUM OF THREE MILLION DOLLARS ($3,000,000) DEPOSITED TO VENDOR CREATING EQUITABLE INTEREST IN THE LAND HEREIN.”

3 The nature of the instrument said to create the interest is described as “CONSTRUCTIVE TRUST IN CONFIDENCE”. The facts given in support of the existence of the caveat are simply said to be “FEE’S AS PER TRADE DOLLAR DEPOSIT”.

4 The statutory declaration given by the defendant in support of the caveat was witnessed by a Mr Toby Wye, who gives his address as 12/16 O'Connell Street, Sydney. The evidence before me indicates that that address does not exist and that Mr Wye is not a Justice of the Peace.

5 On 26 November 2010, I made orders setting out how the summons and supporting affidavit in this matter were to be served given that it was not possible to gain access to the address shown on the caveat. The evidence before me indicates that service has occurred in accordance with those orders.

6 The plaintiff has filed evidence suggesting that it is urgent that this matter be dealt with. Unless settlement proceeds there is a risk that the sale will be lost. In addition, there is evidence to suggest that the plaintiff has pressing financial obligations which it wants to meet out of the proceeds of sale of the property. It will not be able to meet those financial obligations unless the sale proceeds.

7 It seems clear from what I have said that the caveat lodged by the defendant is not a valid one. It does not give any real description of the equitable interest in respect of which the caveat is lodged. Indeed, the description that it gives is more or less incoherent. In addition, for the reasons that I have given it is clear that the defendant’s statutory declaration in support of the caveat is not valid because it has not been witnessed by a Justice of the Peace. In fact, the evidence suggests that the person who is said to have witnessed the declaration is fictitious.

8 Having regard to those matters I think it is appropriate that I make the orders sought by the plaintiff.

9 The orders of the court are:

a Pursuant to section 74MA of the Real Property Act, 1900 that on or before 2.00 pm on 30 November 2010 the defendant withdraw caveat number AF898487C over the plaintiff’s land.
b The defendant, his servants and agents is restrained from lodging any caveat in respect of the land or any part thereof based upon the same grounds set out in caveat number AF898487C or claiming an interest to the same effect as the interest therein claimed.

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