Ollis v Melissari

[2006] NSWSC 329

CITATION:	Ollis v Melissari [2006] NSWSC 329
HEARING DATE(S):	21 April 2006
JUDGMENT DATE :	21 April 2006
JURISDICTION:	Equity
JUDGMENT OF:	Campbell J
EX TEMPORE JUDGMENT DATE:	04/21/2006
DECISION:	Caveat ordered to be withdrawn. Service of application for withdrawal of caveat dispensed with. No need to serve caveator with notice of application relating to manner of division of proceeds of realisation of the property.
CATCHWORDS:	CONVEYANCING - LAND TITLES UNDER THE TORRENS SYSTEM - caveats against dealings - registered proprietor lodges caveat against his own land - person with judgment against registered proprietor seeks to have Sheriff sell land pursuant to exection writ - whether caveat to be removed - caveator has disappeared - whether appropriate to dispense with service - orders also sought by judgment creditor, about manner of dealing with any damages and interest recovered pursuant to execution against the land - whether any need for notification to registered proprietor of those orders
LEGISLATION CITED:	Criminal Assets Recovery Act 1990 Real Property Act 1900 Uniform Civil Procedure Rules 2005
CASES CITED:	70 Pitt Street Pty Limited v McGurk [2004] NSWSC 413 Ollis v Melissari [2005] NSWSC 1064
PARTIES:	Victor Warren Ollis - Plaintiff Mary Melissari - First Defendant Colin Coveny - Second Defendant
FILE NUMBER(S):	SC 1376/05
COUNSEL:	No Appearance - Plaintiff M Lawson - First and Second Defendants
SOLICITORS:	No Appearance - Plaintiff Hancocks Solicitors - First and Second Defendants

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

CAMPBELL J

FRIDAY 21 APRIL 2006

1376/05 VICTOR WARREN OLLIS v MARY MELISSARI (T/AS AUSTATE CONVEYANCERS) & ANOR

JUDGMENT – Ex Tempore

1 HIS HONOUR: I gave a judgment in this matter on 1 November 2005: Ollis v Melissari [2005] NSWSC 1064. The judgment related to a Contract For Sale of Land, pursuant to which Mr Ollis had sold to Mr Coveny a parcel of land near Parkes. Mr Coveny was the second defendant in the action. Mr Ollis contended that the contract had terminated. Mr Coveny filed a cross-claim seeking from Mr Ollis, among other things, damages for breach of the Contract to Sell. The judgment of 1 November 2005 held that it had not terminated and that Mr Coveny was entitled to damages in connection with its breach.

2 The land in question is one on which Mr Ollis himself has placed a caveat. That caveat is number AA975222. In it, Mr Ollis claimed an estate or interest as registered proprietor.

3 As explained in my earlier judgment, Mr Coveny acquired money from various other people to enable him to purchase the land. He accepts that any damages received should be divided up, and any interest received should also be divided up, amongst those people. Those people have all reached an agreement amongst themselves as to the proportions in which damages, and any interest, ought be divided.

4 There is evidence before me from each of the persons who contributed money which shows their consent to that arrangement.

5 The orders which Mr Coveny seeks today are: an order that service on Mr Ollis of an application for today’s orders be deemed to have occurred; an order for withdrawal of the caveat; an order requiring Mr Coveny’s solicitor to pay any amounts received in connection with damages or costs to the various investors in the proportions which they have agreed; and an order for the plaintiff to pay the second defendant’s costs of the application. The occasion for seeking withdrawal of the caveat is that Mr Coveny has obtained a writ of execution, and is seeking to have the Sheriff sell the land to enable the judgment to be satisfied.

6 There have been numerous attempts to serve Mr Ollis with notification of the orders which are sought, and the evidence upon which they are based. The various affidavits on which Mr Coveny relies were sent addressed to him at 21 Salacia Close, St Hubert’s Island on 24 March 2006. That is the address for service which is shown in the summons in these proceedings, and also the address for service shown on the caveat itself. There has been no attempt to serve him with a copy of a Notice of Motion seeking the orders which are sought today.

7 Mr Coveny’s solicitor has become aware that, in the course of the proceedings, Mr Ollis could on occasions be found at another address, 24 Dane Drive, Gosford. That address is one to which, on 24 March 2006, notification was sent that the matter would be listed in court today.

8 It appears that Mr Ollis has become the subject of attention from the New South Wales Crime Commission. On 19 January 2006, his Honour Justice Sully made orders under the Criminal Assets Recovery Act 1990, restraining dealings with, amongst other things, this particular parcel of land. The Crime Commission has placed a caveat on the title, asserting an entitlement to do so under s 15(3) of the Criminal Assets Recovery Act 1990. Mr Coveny does not presently seek orders from me concerning removal of that caveat.

9 The judgment of 1 November 2005 included a finding that Mr Coveny was entitled to a purchaser’s lien over the land in question. It is a well established principle that a caveat, lodged by a person who stands later in priority than someone who has a security interest in the land, will not be permitted to stand in the way of a sale which seeks to enforce that proprietary interest. While the principle is generally expressed in a context where a subsequent mortgagee has lodged a caveat, which is impeding a sale by a first mortgagee (eg 70 Pitt Street Pty Limited v McGurk [2004] NSWSC 413), the principle is not confined to that situation. In my view, it applies here.

10 There is evidence, which I accept, of discussions between the solicitor for Mr Coveny and an officer of the New South Wales Crime Commission, which informed the solicitor (on 13 April 2006) that the last place Mr Ollis had been successfully served by the Commission was Room 89 Outrigger Ettalong Beach Resort at Ettalong Beach. That solicitor, Ms Garrett, made prompt attempts to locate Mr Ollis there, but failed. She sent, however, to that address by post notification of the orders which were proposed to be sought.

11 On 13 April 2006 Ms Garrett spoke with an officer of the Gosford Sheriff’s Office, who told her:

“The address for Victor Ollis at Dane Drive, Gosford, is vacant premises. By the state of the place, I’d say they moved out quickly. I’ve had addresses for Victor Ollis at Salacia Close at St Hubert’s Island, at John Whiteway Drive, at Gosford, at Daley’s Point and at Kincumber. He is not now known at any of those addresses. You wouldn’t believe how many documents I’ve got here to serve on him.”

12 Ms Garrett also made enquiries from Telstra about the listings for Mr Victor Ollis at Gosford or Ettalong and at St Hubert’s Island, but was told there was no listing.

13 There is some reason to believe that Mr Ollis uses various aliases, namely, Victor Lye and Victor Shields. Enquiries were made from Telstra about listings for Victor Lye and Victor Shields in the Central Coast, but those enquiries led nowhere.

14 There is power under section 74MA Real Property Act 1900 for the court to dispense with service of an application for a caveat to be withdrawn. In my view, the present is an appropriate case to exercise that power.

15 Application was also made today pursuant to rule 10.14 Uniform Civil Procedure Rules 2005, for an order that notification of the orders being sought today be taken to be served on Mr Ollis on a particular date. The only occasion for seeking that order is that the orders sought relate not only to the removal of the caveat, but also to the manner of division of the proceeds of any realisation of the property, insofar as it comes to the applicant’s hands. The Sheriff would, in the ordinary course, pay to Mr Coveny from the proceeds of sale no greater amount than was needed to pay the judgment and any interest which has accrued on it, and any costs of execution to which Mr Coveny might be legally entitled.

16 The terms of the orders which were sought were notified by a letter dated 13 April 2006, which was sent by ordinary post addressed to Mr Ollis on 18 April 2006. I am not persuaded that that would provide sufficient notification to justify the making of an order under rule 10.14. However, of the orders which are sought, the only ones which in any way concern Mr Ollis are the orders for removal of the caveat. Concerning them, there is a power under section 74MA Real Property Act 1900 to dispense with service altogether, which I have already said I will exercise. In my view, it is not necessary for the court to make any order under rule 10.14 as a prelude to making those orders.

17 Insofar as the costs of the present application relate to the costs of applying to dispense with service of an application for a caveat to be withdrawn under section 74MA(2) Real Property Act 1900, and for application for withdrawal of the caveat, I order the plaintiff to pay the second defendant’s costs of this application. Insofar as there may be costs involved in the order relating to division of the proceeds, I make no order as to costs.

18 I make orders in accordance with paras 1, 2 and 3 of the draft order, which I initial and date today’s date. Those orders may be entered forthwith.

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