Nigam v Divjakoski

Nigam v Divjakoski involved a dispute between the plaintiffs, Nigam, and the defendants, Divjakoski. The plaintiffs sought to extend a caveat over a property, which the defendants opposed. The dispute was heard in the Federal Circuit Court of Australia. The primary legal issue before the court was whether the requirement for conferral between the parties, as stipulated in section 86K of the Conveyancing Act 1912 (NSW), should be waived to allow the extension of the caveat. This was a pivotal matter because the defendants argued that the plaintiffs had failed to attempt to confer with them, which is a necessary step before the court can consider extending a caveat.

The court examined the circumstances leading to the failure of conferral and assessed whether the plaintiffs had acted reasonably in not attempting to confer. The defendants claimed that the plaintiffs had an obligation to attempt conferral, and the failure to do so should result in the dismissal of the application. However, the court found that the plaintiffs had provided a plausible explanation for not attempting to confer, which involved the defendants' refusal to participate in any form of communication. Given this, the court considered the balance of convenience and the potential prejudice to both parties. The court concluded that the requirement for conferral should be waived, as the plaintiffs had a strong case for the extension of the caveat and the defendants had not shown significant prejudice from the waiver.

The court ruled in favour of the plaintiffs, allowing the extension of the caveat and waiving the requirement for conferral. This decision highlights the court's willingness to consider the balance of convenience and the practicalities of the situation when determining whether to enforce procedural requirements in conveyancing matters. The court's decision was based on the specific circumstances of the case, demonstrating the importance of context in legal decision-making.