Neville v Ryan

[2018] NSWSC 1055

Supreme Court

New South Wales

Medium Neutral Citation:	Neville v Ryan [2018] NSWSC 1055
Hearing dates:	27 June 2018
Decision date:	27 June 2018
Jurisdiction:	Equity
Before:	Ward CJ in Eq
Decision:	1.   Extend the operation of the caveat AN174976 until further order. 2.   Direct that a copy of the order extending the caveat be served on the Registrar General. 3.   Defendant’s costs of this application be paid out of the assets of the estate.
Catchwords:	LAND LAW – Caveats – Extension of operation of caveat
Legislation Cited:	Real Property Act 1900 (NSW), ss 74K(3), 74O
Cases Cited:	Estate of JA Gilmore [2014] NSWSC 1263 FTFS Holdings Pty Ltd v Business Acquisitions Pty Ltd [2006] NSWSC 846
Category:	Principal judgment
Parties:	Paul Warren Neville (Plaintiff) Jan Irene Ryan (Defendant)
Representation:	Counsel: PW Neville (in person) Ms M Ross-Maranik (Solicitor) (Defendant)   Solicitors: Key Point Law (Defendant)
File Number(s):	2018/00197399
Publication restriction:	Nil

EX TEMPORE Judgment

1. HER HONOUR: This matter came before me in the duty list yesterday on the application of the plaintiff, who is self-represented, for an extension of a caveat lodged in respect of certain property at Buff Point. A lapsing notice had been issued in relation to the caveat. The caveat is due to lapse today. Mr Neville had not notified the registered proprietor of the application. I made orders directing that that that be done, in circumstances where I was not prepared to dispense with service, having regard to the provisions of s 74K(3) of the Real Property Act 1900 (NSW). The matter has come back before me in the duty list this morning.

2. The defendant, who is the executor of her mother’s will and the sister of the plaintiff, is represented in court and her solicitor has filed an affidavit deposing to the background in relation to the estate.

3. The caveat that has been lodged by Mr Neville particularises the estate or interest in the land as follows: “Lifetime residency as life tenant pursuant to trust in Will of Moya Edna Neville probate 2017/26690” by virtue of the following facts: “Pursuant to the terms of the Will probated – an interest in a life estate of the property” (and then it names the property) “as life tenant”.

4. The will in respect of which probate has been granted by this Court is a will dated 14 June 2002. Clause 3 (a)(i) of that will leaves the deceased’s estate to her executor upon trust to hold her residence at Buff Point upon trust for Mr Neville for life “he being responsible for paying all rates and taxes and keeping the Residence insured against loss and damage from fire, storm and tempest in an amount and in an insurance office approved by my Trustee and maintaining it in a state similar to that which it is in at my death”. The defendant accepts that on the proper construction of cl 3(a) of the 2002 will Mr Neville has been given a life estate as opposed to a personal right of residence.

5. In Estate of JA Gilmore [2014] NSWSC 1263 Lindsay J considered a caveat which had been lodged pursuant to a claimed entitlement of the beneficiary under a will of a right to life occupancy of the residential dwelling constructed on the relevant land. Lindsay J found that the right in the will was a proprietary right in the nature of a life estate as opposed to a personal right of residence and ordered an extension of the caveat. It is in those circumstances that the defendant quite properly concedes that the will would give rise to a caveatable interest on the part of Mr Neville.

6. What was not explained to me yesterday but is now clear is that there has been a previous caveat lodged in respect of the same property, that being a caveat dated 6 October 2017 in which Mr Neville described his estate or interest in the land as being a “[o]ne third share of the property” and sought to “prevent the possession of the property other than by the probating of a valid will”. That caveat lapsed following a lapsing notice having been issued. Mr Neville tells me that he made an application before another judge in the Equity Division of this court and on that occasion it was indicated that he might wish to consider lodging a caveat claiming a different interest along the lines of the interest that is claimed in the current caveat.

7. Section 74O of the Real Property Act applies if a caveat lodged under a provision of the relevant part of the Act in respect of any particular estate or interest in land subsequently lapses and the same caveator lodges a further caveat with the Registrar General in respect of the same estate, interest or right and purporting to be based on the same facts as the first caveat. Sub-section (2) of s 74O provides that a further caveat to which the section refers has no effect unless the Supreme Court has made an order giving leave for the lodgement of the further caveat and an office copy of the order accompanies the further caveat when it is lodged with the Registrar General. There is a further subclause but that is not applicable in the present case.

8. I have had regard briefly to the reasons of Palmer J in FTFS Holdings Pty Ltd v Business Acquisitions Pty Ltd [2006] NSWSC 846 in relation to circumstances where subsequent caveats are lodged claiming the same interest.

9. In the present case, it is conceded that Mr Neville has a caveatable interest under the will, in circumstances where the will grants a life estate to him. I also note that Mr Neville is at least at this stage seemingly self-represented.

10. In those circumstances, and in circumstances where there is sufficient in the caveat as presently lodged to articulate the caveatable interest claimed, I think the appropriate course is simply to extend the operation of the caveat until further order and to direct that a copy of the order extending the caveat be served on the Registrar General, and I will make that order.

11. I think that it is proper that the costs of the executor, who was a necessary party to application and is entitled to have legal representation, be paid out of the assets of the estate. So I will add to that order that the defendant’s costs of this application be paid out of the assets of the estate.

12. The orders I have made dispose of this matter, and it is not necessary for it to be stood over any further.

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Decision last updated: 10 July 2018