FTFS Holdings Pty Ltd v Business Acquisitions Australia Pty Ltd

[2006] NSWSC 1337

CITATION:	FTFS Holdings Pty Ltd v Business Acquisitions Australia Pty Ltd [2006] NSWSC 1337
HEARING DATE(S):	02/11/06
JURISDICTION:	Equity Division Duty List
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	11/02/2006
DECISION:	Leave granted to file summons with abridgment of time for service
CATCHWORDS:	REAL PROPERTY - Torrens Title - Caveats against dealings - third attempt to procure removal of caveat - whether abuse of process
LEGISLATION CITED:	Real Property Act 1900 (NSW), s 74MA
PARTIES:	FTFS Holdings Pty Ltd ACN 105 403 718 (P) Business Acquisitions Australia Pty Ltd ACN 114 268 361 (D)
FILE NUMBER(S):	SC 5595/06
COUNSEL:	J Wong (sol) (P) Ex parte
SOLICITORS:	Accentro Legal, Solicitors (P) Ex parte

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

BRERETON J

Thursday 2 November 2006

5595/06 FTFS Holdings Pty Limited v Business Acquisitions Australia Pty Limited

JUDGMENT (Ex tempore)

1 HIS HONOUR: In this matter the plaintiff seeks leave to file a summons returnable tomorrow with an abridgement of time for service to 7pm today for an order under Real Property Act 1900 (NSW), s 74MA, for the withdrawal of a caveat. Although I would not normally take time over an application for an abridgement of time for service, the degree of abridgement sought and the history of the matter has caused me occasion to pause.

2 The history includes that, after a contested hearing on 14 August 2006, Palmer J dismissed the present plaintiff's application for an order under s 74MA that the same caveat be withdrawn. Four days after that judgment was given, on 18 August 2006, the present plaintiff served a lapsing notice in respect of the same caveat, and on 6 September 2006 Palmer J made an order that the operation of the caveat be extended until further order, and ordered that the present plaintiff pay the present defendant's costs on an indemnity basis for the reason that the lapsing notice was premature and occasioned unnecessary litigation.

3 That history has therefore caused me to examine with some care whether the Court should lend its imprimatur to the filing of yet another summons attacking the same caveat, particularly on short notice.

4 However, having looked at the judgment of Palmer J, particularly that of 14 August 2006, it is apparent that the previous attacks on the caveat were as to the form of the caveat, its sufficiency in describing a caveatable interest, and the sufficiency of the facts and documentation on which it relied to found a caveatable interest. This application is made on a completely different basis, namely that the plaintiff offers to secure an amount greater than that which it believes could be secured by the instrument on which the caveat relies, so as to found an argument that the balance of convenience no longer favours making the caveat. The plaintiff has sought the defendant's consent to that course, but the only response has been an oral one demanding a much greater sum which, it is at least arguable, would not be covered by the security interest created by the exclusive mandate letter on which the caveat relies.

5 The caveat has caused the plaintiff's financier to refuse to proceed with a finance transaction, as indicated in a letter dated 31 October, and as a result the builder of the development on the plaintiff's property has suspended works.

6 I think those matters make out a sufficient case of urgency and that it is not an abuse of process for the plaintiff to attempt yet again to have this caveat removed.

7 However, I see no point in making the summons returnable tomorrow since an adjournment is inevitable. I will make the summons returnable on Tuesday of next week.

8 Upon the undertaking of Jonathan Wong, solicitor, to pay the appropriate filing fees, I grant leave to the plaintiff FTFS Holdings Pty Limited to file a summons and a notice of motion, each in the form initialled by me, dated this day and placed with the papers. I direct that the summons and the motion be returnable at 10am on 7 November 2006 before the duty Judge. I abridge time for service of the summons and motion to 7pm today, 2 November 2006. I direct that the summons and motion and supporting affidavit shall be sufficiently served if served on the office of Edwin Davey Solicitors, at level 5, 75 Castlereagh Street, Sydney.

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