Di Francesco v Magi Astrologer Priest Religion

[2004] NSWSC 678

CITATION:	Di Francesco v Magi Astrologer Priest Religion [2004] NSWSC 678
HEARING DATE(S):	21 & 22 July 2004
JUDGMENT DATE:	22 July 2004
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Order that caveat be withdrawn.
CATCHWORDS:	CONVEYANCING [189] - Land titles under the Torrens system - Caveats against dealings - Removal - Onus of proof - Onus on caveator to satisfy Court there is serious issue to be tried - Necessity for service of application on caveator.
LEGISLATION CITED:	Real Property Act 1900 ss 74MA, 74N
CASES CITED:	Artura Pty Ltd v Bluecrest Constructions Pty Ltd NSWSC Santow J 21 August 1998 unreported Delma Investments Pty Ltd v Shillito [1971] VR 442 Eng Mee Yong v V Letchumanan s/o Velayutham [1980] AC 331 Genrich v Maitland Holdings Pty Ltd [1982] Qd R 58 Sims v Lowe [1988] 1 NZLR 656
PARTIES :	Elio John Di Francesco (P) Magi Astrologer Priest Religion (D1) Dianne Smith Di Francesco (D2)
FILE NUMBER(S):	SC 4020/04
COUNSEL:	A P Lo Surdo (P) No appearance (Ds)
SOLICITORS:	John S Gibson & Associates (P) D P M Di Francesco (Ds)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

THURSDAY, 22 JULY 2004

4020/04 ELIO JOHN DI FRANCESCO v MAGI ASTROLOGER PRIEST RELIGION IN TRUST FOR D SMITH DI FRANCESCO & ANOR

JUDGMENT

1 HIS HONOUR: This is an application under s 74MA of the Real Property Act 1900 ("the RPA") for the withdrawal of a caveat. The caveat concerned was lodged with the Registrar General and was given the number AA734190V, although it has not yet been registered.

2 The estate or interest claimed and the fact relied on is stated as follows in the caveat:

“No transfer deeds, registrars signed transfers without judges order claiming of a 1/2 share in property.”

This is almost unintelligible on the face of it, but when one learns from the balance of the evidence that the second defendant was once a half owner of the property, that she was ordered by the Family Court of Australia to transfer her interest to the plaintiff and that the transfer was effected by a form of transfer executed by a Deputy Registrar of the Family Court, the estate or interest may be understood to be a half share in the fee simple in the property previously held by the second defendant and that the second defendant still claims to have an entitlement, at least in equity, to that share in the fee simple by reason of the invalidity of the transfer on the ground that the Registrar signed the transfer without being empowered to do so by a Judge's order.

3 There are before me orders of the Family Court in proceedings between the plaintiff and the second defendant made on 22 October 1999 of which particularly relevant are orders 3 and 6. The effect of order 3 is that at the time the husband complied with orders 1 and 2 the wife should transfer to the husband all of her interest in the property known as 36 Eldred Street Silverdale (“the subject property”). By order 6 if a party refuses or neglects to sign a document necessary to implement the orders “the Registrar or any Deputy Registrar is authorised to sign such document in the name of the defaulting party”. It seems to me, therefore, that the claim made in the caveat is bad on the face of it. The claim on its face is a claim that the Registrar's signature was affixed without a Judge's order and there is plainly a sealed and apparently regular order of the Court.

4 Neither of the defendants having appeared, that is probably sufficient. However, it may be added that, although there is no actual proof of fulfilment of the condition attached to order 3, ie compliance with orders 1 and 2, the Registrar's solemn act in executing the transfer carries with it a presumption of regularity, ie that, in the absence of proof to the contrary, the transfer was duly executed by the Registrar and that the precondition had been fulfilled before that execution.

5 Mr Lo Surdo, of counsel for the plaintiff, has referred me to the proposition that he is in any event assisted by the principle that it was for the caveator to satisfy the Court that there is a serious issue to be tried to enliven the jurisdiction to extend the caveat so as to maintain the status quo until the trial of that issue: see Eng Mee Yong v V Letchumanan s/o Velayutham [1980] AC 331, a decision of the Privy Council, and Sims v Lowe [1988] 1 NZLR 656 a decision of the New Zealand Court of Appeal. The Privy Council decision has been cited with approval in this Court: see Artura Pty Ltd v Bluecrest Constructions Pty Ltd NSWSC Santow J 21 August 1998 unreported; and see Genrich v Maitland Holdings Pty Ltd [1982] Qd R 58. This principle appears to me to be correct but I really do not need to place reliance upon it to order the withdrawal of the caveat in this case.

6 The other proposition to which Mr Lo Surdo has usefully referred as a potential difficulty is the fact that this caveat is not registered. However, Mr Lo Surdo says that that is not an objection to the exercise of jurisdiction under s 74MA. Section 74MA specifically refers to the subject matter of that section as "a caveat lodged" rather than a caveat registered or noted on the title, so that the latter is not a precondition of the exercise of the jurisdiction. The time at which a caveat is taken to be lodged is defined in s 36(1)(b) of the RPA as being the time at which the Registrar General has allotted to it a "distinctive reference". This caveat is lodged within the meaning of the RPA because it received the number AA734190V in the Registrar General's office. If there were any doubt, which I think there is not, a beneficial interpretation of s 74MA would in any event confer upon the Court power to deal with lodged and not just registered caveats, because so long as the caveat remains lodged, the Registrar General remains obliged to give it effect by registering it upon the title. The situation is different where the statutory jurisdiction is to order the removal not the withdrawal of a caveat: Delma Investments Pty Ltd v Shillito [1971] VR 442. In the present circumstances, it is appropriate to order the withdrawal of the caveat, that is, the execution and delivery of a notice of withdrawal of caveat, which will remove from the Registrar General the obligation of proceeding in any circumstances to register the caveat.

7 As I have already said, the defendants have not appeared. The second defendant has been served with notice of the application by way of personal service of the summons on her. The first defendant is an entity described as "Magi Astrologer Priest Religion in Trust for D Smith Di Francesco". The nature of this entity remains mysterious. It certainly is not a registered corporate entity. It had not been served, unless service on the second defendant also operated as service on the first defendant. I did require adjournment of the matter from yesterday. I was not prepared to assume that the first defendant was simply another name for the second defendant, particularly since Magi Astrologer Priest Religion is described as holding something in trust for the second defendant, which appears to distinguish it from herself. The plaintiff has now effected service of notice by delivery of a document directed to the first defendant by that name at the address given in the caveat and thereby complied with the provisions s 74N of the RPA. There is, therefore, now no reason why I should not make an order for the withdrawal of the caveat.

8 Costs are sought on the indemnity basis and indemnity costs were prayed for in the summons served. The caveat is demonstrated by the evidence to be totally baseless on the face of it, nor have the defendants appeared to oppose the order for withdrawal and have done nothing to satisfy the Court that there is a serious issue to be tried. In those circumstances it is appropriate that the plaintiff have his costs on the indemnity basis.

9 Therefore the orders I make are that the defendants pay the plaintiff's costs of the proceedings on the indemnity basis. These orders may be entered forthwith. Orders in accordance with form of order initialled by me and placed with the papers.

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Last Modified: 08/16/2004