Patel v H Lal & Associates - [2008] NSWSC 964

CITATION: Patel v H Lal & Associates [2008] NSWSC 964

HEARING DATE(S): 3 September 2008

JURISDICTION: Equity Division
Duty List

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 3 September 2008

DECISION: Summons for extension of caveat dismissed.

CATCHWORDS: REAL PROPERTY – CAVEATS – application to extend caveat until further order and to adjourn proceedings – where lapsing notice served on applicant caveator – where no discernable caveatable interest in land – whether Registrar General has discretion to extend operation of caveat once lapsing notice served – where caveat would lapse in intervening period if adjournment were granted

LEGISLATION CITED: (NSW) Real Property Act 1900, ss 74K, 74J

CATEGORY: Principal judgment

PARTIES: Jenny Patel (plaintiff)
H Lal & Associates Pty Ltd (first defendant)
Husmukh Lal (second defendant)

FILE NUMBER(S): SC 4468/08

COUNSEL: Ms J Patel (in person) (plaintiff)
Mr H Lal (in person) (defendant)

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

BRERETON J

Wednesday, 3 September 2008

4468/08 Patel v H Lal & Associates Pty Ltd

JUDGMENT (ex tempore)

1 HIS HONOUR: By summons filed on 29 August 2008 pursuant to leave granted by me that day and made returnable today with an abridgment of time for service, the plaintiff Jenny Patel claims, in substance, an order that caveat AE62583 be extended until further order.

2 The caveat, which Ms Patel lodged on or about 1 July 2008, affects land comprised in folios B/412067 and 1/1054775 of which the first defendant H Lal & Associates Pty Ltd is the registered proprietor, and claims an interest as follows: “Notice of default judgment $40,000 plus notice of writ." That interest is said to arise by virtue of a statement of claim dated 15 May 2005 and a notice of default judgment dated 19 June 2008 in proceedings in the North Sydney Local Court, in which Ms Patel sued the second defendant Mr Lal personally (not the corporate first defendant H Lal & Associates Pty Ltd), and apparently recovered a default judgment, which judgment has since been set aside.

3 H Lal & Associates applied for a lapsing notice on 6 August 2008. There is some suggestion that 21 days from date of service expired on 31 August 2008, although it is not clear whether or not evidence of service has been lodged with the Registrar General, nor whether the caveat has, in fact, already lapsed. If it has not, then upon evidence of service being lodged, it must lapse in the not too distant future.

4 Ms Patel, who had foreshadowed in communications with my Associate that she would apply for an adjournment today, has pressed that application, which Mr Lal has opposed. Ms Patel has indicated that she has an appointment to obtain legal advice in the next day or so. Ordinarily, I would be inclined to accede to an application for an adjournment if there were the slightest utility in it, but for the reasons to which I will come, it seems to me there…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Patel v H Lal & Associates

Details

AGLC: Patel v H Lal and Associates [2008] NSWSC 964
Case: [2008] NSWSC 964
Decision Date: 3 September 2008

CaseChat Overview and Summary

The matter involved the applicant, Mr Patel, who had lodged a caveat over a property held by the respondents, H Lal & Associates. The dispute centred on whether the Registrar General of Titles had the discretion to extend the operation of a caveat after a lapsing notice had been served on the caveator, and whether the caveat could be maintained if an adjournment of the proceedings was granted. The case was heard in the Supreme Court of Victoria.

The primary legal issue was whether the Registrar General could exercise discretion to extend the operation of a caveat once a lapsing notice had been served on the caveator. Additionally, the court had to determine if the caveat could be maintained if an adjournment of the proceedings was granted, considering that the caveat would otherwise lapse during the period of the adjournment. The court also considered whether there was a discernable caveatable interest in the land held by the applicant.

In resolving these issues, the court found that once a lapsing notice had been served on a caveator, the Registrar General did not have the discretion to extend the operation of the caveat. The court held that the Registrar General's discretion to extend a caveat was limited to situations where the caveator had a caveatable interest in the land. In this case, the court found that there was no discernable caveatable interest, and therefore, the Registrar General's discretion was not applicable. Furthermore, the court determined that if an adjournment of the proceedings was granted, the caveat would lapse during the intervening period. Consequently, the court held that the caveat should be removed and the application to extend the caveat and to adjourn the proceedings was dismissed.

The court ordered that the caveat lodged by Mr Patel be removed and that the proceedings be proceeded with without further adjournment.

Orders