Nittis v Nittis

[2007] NSWSC 1407

CITATION:	Nittis v Nittis [2007] NSWSC 1407
HEARING DATE(S):	1 November 2007
JUDGMENT DATE :	1 November 2007
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Withdrawal of caveat ordered.
CATCHWORDS:	CONVEYANCING [185] - Land titles under the Torrens system - Caveats against dealings - Form of caveat - Statement of estate or interest - Statement reveals caveator relies on interest which is not caveatable – Caveat was third caveat lodged claiming same interest.
LEGISLATION CITED:	Real Property Act 1900 s 74O
PARTIES:	George Christopher Nittis (P) Sylvana Nittis (D)
FILE NUMBER(S):	SC 5331/07
COUNSEL:	M K Condon (P) A G Stuart, Solicitor (D)
SOLICITORS:	Sage Solicitors (P) Stuart & Mills (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

THURSDAY, 1 NOVEMBER 2007

5331/07 GEORGE CHRISTOPHER NITTIS v SILVANA NITTIS

JUDGMENT

1 HIS HONOUR: These are proceedings for the withdrawal of a caveat. The evidence shows that the property is the subject of a contract of sale. There is an appointment for the settlement of that contract tomorrow, 2 November 2007.

2 Mr Andrew Stuart, solicitor, has appeared for the defendant and made various submissions on her behalf. The first submission is that there is a bitter matrimonial dispute between the plaintiff and the defendant, in which the property is involved. That submission I unreservedly accept; it is quite apparent from the evidence. However, this Court is not exercising jurisdiction over that dispute. The only jurisdiction of this Court that is sought to be invoked is its jurisdiction over the removal of caveats on land under the Real Property Act 1900 (“the RPA”). The evidence relevant to that matter shows that this is the third caveat lodged by this defendant over this property. Each of those caveats has been in identical terms. The interest claimed under each has been stated in the following terms:

“The caveator claims an equitable interest in the land pursuant to Family Court proceedings number SYF3350/06”.

3 On the face of the matter there are two things to be said about these caveats including the one that is presently on the title. The first is that the estate or interest claimed is, on its face, not a valid equitable interest in the land. The second thing that is to be said is that this caveat being the third in identical terms, the previous two having lapsed, attracts the provisions of s 74O of the RPA. That provides that where a caveat has lapsed and the same caveator lodges a further caveat in respect of the same estate, interest or right the caveat has no effect unless the Supreme Court has made an order giving leave for the lodgement of the further caveat. Whatever the rights and wrongs of the dispute between the plaintiff and the defendant, the present caveat is without effect and without justification. There is nothing I can do in the circumstances but order its withdrawal forthwith. The defendant’s remedy in the situation, if she has one, is not by lodgement or maintenance of this invalid caveat.

4 The orders of the Court will be:

(1) I grant leave to the plaintiff to file a summons in initialled by me returnable on 1 November 2007 at 4.30 pm before the Duty Judge.
(2) I grant leave to file supporting affidavits.
(3) I dispense with service of the summons.
(4) I order that the defendant withdraw caveat number AD517834N forthwith.
(5) I order that the defendant pay the plaintiff’s costs of these proceedings.
(6) I direct that these orders be entered forthwith.

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