Edmonds & anor v He & anor

[2006] NSWSC 1094

CITATION:	Edmonds & anor v He & anor [2006] NSWSC 1094 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	28/09/06
JUDGMENT OF:	Gzell J
EX TEMPORE JUDGMENT DATE:	09/28/2006
DECISION:	Adjournment granted.
CATCHWORDS:	PROCEDURE - Miscellaneous procedural matters - Adjournments - Application for removal of caveat - Interest as lessee of a registered lease claimed - Question whether caveator surrendered lease - Contract for sale of land with imminent completion - Time not of the essence and no damages if vendors could not complete - 14 days notice to complete to make time of the essence - Caveator in China not due to return to Australia until after completion date - Adjournment sought to a date shortly after the caveator's return to Australia and within the 14 days
PARTIES:	William Leslie George Edmonds - First Plaintiff Joyce Suraj Edmonds - Second Plaintiff Jing He - First Defendant Registrar General - Second Defendant
FILE NUMBER(S):	SC 4884/06
COUNSEL:	Mr B J Burke - Plaintiffs Mr V F Kerr - First Defendant
SOLICITORS:	Courtenay & Co - Plaintiffs Rutland's Law Firm - First Defendant Department of Lands, Legal Division - Second Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

THURSDAY 28 SEPTEMBER 2006

4884/06 WILLIAM LESLIE GEORGE EDMONDS & ANOR v JING HE & ANOR

EX TEMPORE JUDGMENT

1 An application is made for the removal of a caveat over land. The first defendant caveator, Jing He, was a lessee from the plaintiffs, William Leslie George Edmonds and his wife of the premises. There is a question whether or not Mrs He surrendered the lease on 1 September 2006.

2 Mr and Mrs Edmonds entered into a contract to sell with vacant possession on 6 September 2006, completion being due on 4 October 2006. Time is not of the essence in the contract, but a notice to complete within 14 days making time of the essence can be given. There is a special provision that the vendors are not liable in damages to the purchaser if they cannot complete.

3 Mrs He became aware that the property had been sold on 7 September 2006 and on 8 September 2006 she lodged the caveat asserting an interest as lessee of a registered lease to expire on 2 August 2008. On 18 September 2006 the summons currently before the court was taken out.

4 When the summons was served, a letter from the solicitors for Mr and Mrs Edmonds to Mrs He made it clear that Mr and Mrs Edmonds proposed to seek the order on the return date, being today, in order that the matter could be finalised before the completion date in the contract for sale. The letter invited Mrs He to put on evidence so that the matter could be finalised.

5 Mrs He is in China. She is an Australian resident. She is due to return to Australia on 5 October 2006. Her counsel seeks an adjournment for a short period following that date in order to allow an affidavit to be put on explaining her position; that is, an affidavit of the type she was invited to serve on 7 September 2006 before leaving for China.

6 If an adjournment is granted until after her return, it will mean that Mr and Mrs Edmonds will not be able to complete the sale on 4 October 2006. That is a material consideration against granting the adjournment.

7 On the other hand, there is the question whether or not the lease was surrendered. If it was not, the sale on the basis of vacant possession cannot proceed. That seems to me to be an important question and one that can be resolved before the expiration of a notice under the contract calling for completion.

8 Mrs He by her counsel offers an undertaking as to damages. It is suggested that it is questionable whether Mr He has the capacity to honour such an undertaking. But the court will usually accept an undertaking unless there be some evidence to suggest an incapacity to honour the undertaking.

9 There is in evidence a letter of 8 September 2006 enclosing bank cheques in excess of $30,000 in payment of all arrears of rent. The cheques were not accepted because they were offered conditionally, and the conditions were not acceptable to Mr and Mrs Edmonds. The fact that Mrs He could tender bank cheques in that amount, however, is some evidence of a capacity to honour the undertaking that has been given.

10 The adjournment is sought until Friday 6 October 2006 or to Monday 9 October 2006. As I have said, both dates are within the 14 days that would be necessary to elapse before the purchaser is entitled to call for completion under the contract. In further argument the date sought was Tuesday 10 October 2006.

11 While the matter is a borderline one, I propose to grant the application for the adjournment and stand the matter over.

12 I note that the defendant by her counsel gives the usual undertaking as to damages. I note that the defendant by her counsel undertakes to provide to the plaintiffs her residential address by no later than 4.00 pm on Tuesday 3 October 2006. I direct the defendant to serve upon the plaintiffs any affidavits upon which she intends to rely on the hearing of the motion by no later than 4.00 pm on Friday 6 October 2006. I stand the matter over before the Duty Judge at 10.00 am on Tuesday 10 October 2006. I reserve costs.

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18/10/2006 - Spelling error of word September - Paragraph(s) Body of judgment