CBD Prestige Properties (No. 3) Pty Ltd v Metropolitan Aboriginal Land Council

[2012] NSWSC 1413

Supreme Court

New South Wales

Medium Neutral Citation:	CBD Prestige Properties (No. 3) Pty Ltd v Metropolitan Aboriginal Land Council [2012] NSWSC 1413
Hearing dates:	14 November 2012
Decision date:	14 November 2012
Jurisdiction:	Equity Division - Duty List
Before:	White J
Decision:	Ex parte application refused.
Catchwords:	CONVEYANCING - caveats - application for extension - not to be made ex parte - not to be left to last moment INTERLOCUTORY INJUNCTION - no evidence of threatened breach of joint venture agreement
Legislation Cited:	Real Property Act 1900 (NSW)
Cases Cited:	Malouf v O'Donohoe [2001] NSWSC 335 Wonderland Business Park Pty Limited v Hartford Lane Pty Limited [2001] NSWSC 86
Category:	Interlocutory applications
Parties:	CBD Prestige Properties (No. 3) Pty Ltd (Plaintiff) Metropolitan Aboriginal Land Council (Defendant)
Representation:	Counsel: S Galitsky (Plaintiff) Solicitors: Websters (Plaintiff)
File Number(s):	2012/354375

Judgment

1. HIS HONOUR: This is an ex parte application for the extension of a caveat and for the grant of an interlocutory injunction to restrain the defendant from dealing with land in Bantry Bay Road, Frenchs Forest.

1. I am told that the caveat expires today. It is well settled that applications for extension of a caveat should not be made at the last moment, and that the Court cannot make such an order ex parte unless it makes an order dispensing with service. That is a requirement of s 74K of the Real Property Act 1900 (NSW). It would be a rare case indeed that dispensing with service of an application could be justified.

1. In Malouf v O'Donohoe [2001] NSWSC 335, Young CJ in Eq (as his Honour then was) noted that the statute requires that no ex parte application to extend a caveat is to entertained unless the court has dispensed with service and at least since the decision of the then Chief Justice in Equity in Wonderland Business Park Pty Limited v Hartford Lane Pty Limited [2001] NSWSC 86, the Court almost never makes an order of this nature ex parte. His Honour said:

"It is extremely difficult to see any justification for dispensing with service in cases where lawyers have left their application for dispensing with service to the last day and no other factor is present. Indeed it is difficult to see when the Court would ever be justified in dispensing with service in a case where there was an identifiable caveator [sic] in the jurisdiction."

1. There is no explanation for the delay in making the application and there would be no warrant for dispensing with service.

1. Nor am I satisfied that the plaintiff has demonstrated the existence of a caveatable interest.

1. So far as the claim for ex parte injunctive relief is concerned, the joint venture agreement provides in clause 2.7 that the defendant cannot dispose of any interest in the joint venture site during the term of the joint venture without the prior written consent of CBD Prestige Property Holding Pty Limited. The plaintiff is said to be the assignee of that company's interest in the joint venture.

1. There is no evidence that the defendant threatens to dispose of the site or any interest in it in breach of the joint venture agreement.

1. I refuse the ex parte application for the extension of the caveat and for an interlocutory injunction. Nor on the present material is there any reason to make an order for short service of the summons. If there are proper grounds for the plaintiff to seek further interlocutory relief, that application can be made by notice of motion and affidavit in accordance with the rules. If there are proper grounds for seeking short service of such a notice of motion, then an application in that respect can be made to the Duty Judge. At the moment nothing of that kind is demonstrated.

1. I have given leave to the plaintiff to file the summons in Court on the undertaking of the plaintiff's solicitor to pay the appropriate filing fee. The bundle of documents tendered on the application can be returned. The summons can be filed in the Registry.