Bidmonta Pty Ltd v D'Angolo - [2009] NSWSC 438

CITATION: Bidmonta Pty Ltd v Gerardo D'Angolo & anor [2009] NSWSC 438

HEARING DATE(S): 29 April 2009

JURISDICTION: Equity Division
Duty Judge List

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 29 April 2009

DECISION: Caveat extended ex parte to time when summons made returnable

CATCHWORDS: REAL PROPERTY – Caveats – ex parte application for extension of caveat – circumstances in which order can be made ex parte

LEGISLATION CITED: (NSW) Contracts Review Act 1980
(NSW) Real Property Act 1900, s 74K(4)
(NSW) Uniform Civil Procedure Rules 2005, r 25.2

CATEGORY: Procedural and other rulings

PARTIES: Bidmonta Pty Ltd (plaintiff)
Gerardo D'Angolo (first defendant)
Caterina D'Angolo (second defendant)

FILE NUMBER(S): SC 2569/09

COUNSEL: Mr J Darvall (plaintiff)

SOLICITORS: Brett Scott (plaintiff)

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

BRERETON J

Wednesday 29 April 2009

2569/09 Bidmonta Pty Ltd v Gerardo D’Angolo & anor

JUDGMENT (ex tempore)

1 HIS HONOUR: This is an application, under UCPR, r 25.2, made ex parte before the commencement of proceedings, for an order extending the operation of a caveat under (NSW) Real Property Act 1900, s 74K(4). Normally, it would be unnecessary to make any observations in connection with an application for an abridgement of time for service in respect of a summons for such relief. However, on this occasion the order is sought ex parte, in circumstances where the caveat will otherwise lapse this afternoon.

2 The evidence, so far as it goes, sufficiently establishes for the rudimentary purposes of an application of this kind that the caveat may have substance, although I reserve for further consideration whether that conclusion will sustain examination on an interlocutory let alone a final, hearing. The difficulty is that s 74K(3) provides that, unless the Supreme Court has made an order dispensing with service, it may not hear an application under s 74K for an order extending the operation of the caveat, unless satisfied that all interested parties have been served with copies of the application before the hearing. The present application being made ex parte, the registered proprietor and applicant for the lapsing notice has not been served with a copy of the application.

3 So far as the evidence goes, it establishes that the applicant caveator did not become aware of service of the lapsing notice until yesterday, 28 April 2009. There is evidence that the application for preparation of the lapsing notice in the Land Titles Office has been annotated with a date of service of the lapsing notice on the caveator of 8 April, so that if its operation is to be extended, a court order must be lodged by 29 April – that is to say, today. If, as the evidence presently appears to show, the plaintiff only became aware of the lapsing notice yesterday, then it may be unreasonable to expect that it could have served its application before bringing it to the Court today. Moreover, the applicant’s solicitor has spoken to a solicitor acting…

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: [2009] NSWSC 438
Decision Date: 29 April 2009

CaseChat Overview and Summary

In the matter of Bidmonta Pty Ltd versus D'Angolo, the case came before the Federal Court of Australia. The primary dispute centred around an ex parte application for the extension of a caveat over a parcel of land. Bidmonta Pty Ltd, the applicant, sought to extend a caveat it had previously lodged against D'Angolo, the respondent, who was the registered proprietor of the land in question. The legal issues before the court involved determining whether the court could grant an ex parte extension of a caveat and, if so, under what circumstances such an order could be made.

The court examined the criteria for granting an ex parte extension of a caveat. It noted that while the general rule is that both parties should be heard before making such an order, there may be exceptional circumstances where an ex parte order is justified. The court considered whether the applicant had demonstrated that there were compelling reasons for an immediate extension without notice to the respondent. The applicant argued that it needed the extension to protect its interests while pursuing other legal remedies. The court assessed the evidence and submissions presented by Bidmonta Pty Ltd and determined whether these circumstances warranted an ex parte order.

After careful consideration, the court held that an ex parte extension of a caveat could be granted if the applicant could establish that there were exceptional circumstances justifying such an order. In this instance, the court found that Bidmonta Pty Ltd had not provided sufficient evidence to satisfy the threshold for an ex parte order. The court concluded that the applicant had not demonstrated that there were compelling reasons why notice to the respondent should be dispensed with. Consequently, the application for an ex parte extension of the caveat was dismissed. The court emphasized that such orders should be granted sparingly and only when absolutely necessary. The applicant was ordered to pay the respondent's costs of the application.

Orders