Ruxan Pty Limited v Peachme Pty Limited

[2004] NSWSC 1221

CITATION:	Ruxan Pty Ltd v Peachme Pty Ltd [2004] NSWSC 1221
HEARING DATE(S):	13 December 2004
JUDGMENT DATE:	13 December 2004
JURISDICTION:	Equity
JUDGMENT OF:	Campbell J
DECISION:	Caveat ordered to be withdrawn
CATCHWORDS:	CONVEYANCING - LAND TITLES UNDER THE TORRENS SYSTEM - caveats against dealings - order that caveat be withdrawn - applicable principles
LEGISLATION CITED:	Corporations Act 2001 (Cth) Real Property Act 1900
CASES CITED:	70 Pitt Street Sydney v McGurk [2004] NSWSC 413 Gay v Gooden (1989) NSW ConvR 55-445 Kerrabee Park Pty Ltd v Daley [1978] 2 NSWLR 222 Martyn v Glennan [1979] 2 NSWLR 234
PARTIES :	Ruxan Pty Ltd - Plaintiff Peachme Pty Ltd - Defendant
FILE NUMBER(S):	SC 6628/04
COUNSEL:	K Rees - Plaintiff No appearance
SOLICITORS:	Henry Davis York - Plaintiff No appearance

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

CAMPBELL J

MONDAY 13 DECEMBER 2004

6628/04 RUXAN PTY LTD v PEACHME PTY LTD

JUDGMENT – Ex Tempore

1 HIS HONOUR: This is an application under section 74MA of the Real Property Act 1900 for an order that a caveat on two lots of land located at 69 The Mall, Bankstown, be withdrawn. The plaintiff is presently the registered proprietor of those lots of land. On 27 November 2003 the plaintiff entered into a contract to sell the land to the defendant, for a price of $1.3 million. The contract stated the defendant's address as being 3/12 Old Town Plaza, Bankstown.

2 A notice to complete was served by the plaintiff on the defendant on 30 March 2004, which was extended by agreement. A further notice to complete was served by the plaintiff on the defendant on 17 May 2004, but withdrawn. A third notice to complete dated 19 May 2004 was served, which appointed 3 June 2004 for settlement. Settlement did not occur on 3 June 2004. In consequence, on 4 June 2004 the plaintiff served a notice of termination of the contract.

3 The plaintiff has now entered into a contract to sell the land to another party. That contract was due to settle on 1 December 2004. That settlement did not proceed when it was discovered that a caveat had been lodged on the title. It is a caveat lodged by the defendant, claiming an equitable interest in purchasing the property pursuant to the contract for sale dated 27 November 2003. The facts by virtue of which that interest is claimed are stated in the caveat as being:

“The caveator entered into a contract to purchase the land and claims that contract has not been validly terminated and the caveator claims it is entitled to purchase the land under the terms of the contract dated 27 November 2003.”

The caveat is one which is verified by statutory declaration made by Karl Alamel-Dine made 25 November 2004. It appears to have been lodged on 26 November 2004.

4 The present proceedings were begun on 7 December 2004. On that date his Honour, Windeyer J, abridged time for service of the summons and affidavit to noon on 8 December 2004.

5 There have been various attempts made to bring the proceedings to the attention of the defendant, and of Mr Alamel-Dine, who is a director of the defendant. The summons and affidavit were served at the registered office of the defendant, as shown by an ASIC search, at 11.50 am on 8 December 2004. Section 601CX Corporations Act 2001 (Cth) enables service of any document to be effected at the registered office of the corporation. Though section 601CX(5) reserves the power of the Court to authorise a document to be served on a registered body in a manner not otherwise provided for in the section, the orders of Windeyer J made no special provisions about the manner in which service should be effected. It follows that service at the registered office is effective service.

6 The caveat notified 3/12 Old Town Plaza, Bankstown Plaza as the address for service of notices relating to the caveat. An attempt was made to serve the summons and affidavit, and also a lapsing notice relating to the caveat, at that address. The address turned out to be an office of some accountants, which was closed. When the accountants were contacted, at a telephone number displayed on the exterior of the premises, they denied any knowledge of the defendant.

7 An attempt was also made to serve Mr Alamel-Dine at his address shown in the ASIC search of the defendant. Those premises turned out to be vacant, and for sale. The summons and affidavit were also served on the solicitor who had acted for the defendant at the time of entering into the contract, and who was, pursuant to clause 20 of the standard form of contract (and the contract dated 27 November 2003 was in the standard form) someone on whom notices relating to contract could be served.

8 In these circumstances, I am satisfied the proceedings have been validly served. The defendant was called outside Court this morning, and did not appear.

9 Whether a caveat should be ordered to be removed depends upon whether, at the time that the Court comes to consider the question, an interlocutory injunction would be granted to protect the interest claimed in the caveat: Kerrabee Park Pty Ltd v Daley [1978] 2 NSWLR 222; Martyn v Glennan [1979] 2 NSWLR 234; Gay v Gooden (1989) NSW ConvR 55-445; 70 Pitt Street Sydney v McGurk [2004] NSWSC 413 at [15].

10 In the present case, on the evidence now before me, I see no serious question to be tried about the validity of the interest claimed by the caveat. The correspondence between solicitors which lead to the service of the notice of termination has been placed before me. I see nothing in it to suggest that the termination was ineffective.

11 When there is no serious question to be tried, there is no occasion to consider the balance of convenience.

12 My attention is drawn, by counsel for the plaintiff, to certain facts concerning the defendant, and the second purchaser of the land, which suggests that there might be some relationship between them. I do not rely on any of that material in coming to the conclusion which I have arrived at.

13 I make orders in accordance with short minutes of order which I initial, date today’s date and shall place with the papers. These orders may be entered forthwith.

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Last Modified: 12/17/2004