Pyoja v 284 Bronte Road Developments

[2003] NSWSC 818

CITATION:	Pyoja v 284 Bronte Road Developments [2003] NSWSC 818
HEARING DATE(S):	27 August 2003
JUDGMENT DATE:	27 August 2003
JURISDICTION:	Equity
JUDGMENT OF:	Austin J
DECISION:	Order made under s 74O
CATCHWORDS:	REAL PROPERTY - caveat - ex parte application for extension refused - circumstances in which order under s 74 O will be made
LEGISLATION CITED:	Real Property Act 1900 (NSW) ss 74K(3), 74O
CASES CITED:	Malouf v O'Donohoe [2001] NSWSC 335
PARTIES :	Pyoja Pty Ltd (P) 284 Bronte Road Developments Pty Ltd (D)
FILE NUMBER(S):	SC 4523/03
COUNSEL:	A J O'Brien (P)
SOLICITORS:	Savio, Solicitors (P)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

WEDNESDAY 27 AUGUST 2003

4523/03 PYOJA PTY LTD V 284 BRONTE ROAD DEVELOPMENTS PTY LTD

JUDGMENT (Ex tempore; revised 2 September 2003)

1 HIS HONOUR: This is an application for extension of a caveat brought on the last day before which the existing caveat would lapse. Having regard to what the learned Chief Judge in Equity said in Malouf v O'Donohoe [2001] NSWSC 335 (27 April 2001), I can see no justification for making an order under s 74K(3) of the Real Property Act 1900 (NSW) dispensing with service. In the absence of my making such an order, I am not in a position to extend the caveat on an ex parte basis.

2 However, in the special circumstances of this case, I am prepared to act, as his Honour did, by making an order under s 74 O, allowing a fresh caveat to be lodged in identical terms to the current caveat, on the condition that the new caveat be withdrawn next Tuesday, 2 September 2003, unless the Court makes an order, when the matter returns on Monday, 1 September, extending the period.

3 As in the case before his Honour, this is a case where there appears to have been genuine inadvertence, caused partly by the fact that, the notice of lapse being served on someone other than the plaintiff at his residence, it was not brought to his attention for some six days, and thereafter the plaintiff's solicitor was not available to deal with the matter for some time. Additionally, the plaintiff was distracted by his father being admitted to hospital during that period with terminal cancer.

4 There is a good, arguable case for the existence of a caveatable interest.

5 The profession should by now have become very well familiar with the propositions set out in his Honour's brief judgment in Malouf v O'Donohoe, but in the circumstances I have described, I am prepared, nonetheless, to make an order under s 74 O.

**********

Last Modified: 09/05/2003