Shaw v Official Trustee in Bankruptcy

[1999] NSWSC 257

CITATION:	Shaw v Official Trustee in Bankruptcy [1999] NSWSC 257
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	1746/99
HEARING DATE(S):	24 & 25 March 1999
JUDGMENT DATE:	25 March 1999
PARTIES :	George Thomas Shaw (P) Official Trustee in Bankruptcy (D1) Westpac Banking Corporation (D2)
JUDGMENT OF:	Hamilton J

COUNSEL :	Thomas Shaw, by leave (P) J White, Solicitor (D1) M F Daniels, Solicitor (D2)
SOLICITORS:	In person (P) Kemp Strang (D1) Dunhill Madden Butler (D2)
CATCHWORDS:	CONVEYANCING [191] - Torrens system - Caveats against dealings - Practice - Proceedings to extend caveat - Joinder of party to conflicting transaction - "All interested parties disclosed" by lapsing notice - Meaning - Necessity for joinder - Considerations - Caveat manifestly bad.
ACTS CITED:	Real Property Act 1900, s 74K(3)
CASES CITED:	Ryu v Lee (1996) 7 BPR 14,678 Strasburger Enterprises Pty Ltd v Cadomet Pty Ltd, 18 March 1993, NSWSC, Hodgson J, unreported
DECISION:	Application for joinder of additional defendant refused.

PI:PM:2


~25/03/99 3


THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

THURSDAY, 25 MARCH 1999

1746/99 GEORGE THOMAS SHAW v OFFICIAL TRUSTEE IN BANKRUPTCY & ANOR

JUDGMENT - on application for adjournment

HIS HONOUR:
1 This matter came before me yesterday. It is a summons for the extension of a caveat which will otherwise lapse by reason of the service of a lapsing notice. The parties to the proceedings yesterday were the plaintiff, whose interest is set out in the subject caveat, being caveat 5505510J, as follows:
“Nature of the estate or interest in the land/registered dealing

I am a previous registered proprietor who claims a continuance of 50 per cent equity in the property, and therefore the right to veto any transaction concerning the property (in particular, sale).

By virtue of the instrument referred to below

Nature of Instrument: Caveat

Date: 14/12/1998

Parties: Lily Shaw

By virtue of the facts stated below

Restitution of a debt was the basis of claim to the property of the current registered proprietor, the Official Trustee in Bankruptcy. But that debt is null and void under natural law, & so, there is the proprietorship.”

2 The necessity of extending the caveat arose, as I have said, from the service of a lapsing notice. The lapsing notice is in evidence. It names the applicant for the lapsing notice as the Westpac Banking Corporation and there is no doubt that it was the Westpac Banking Corporation that, having procured the lapsing notice, served it upon the caveator. Section 74K(3) of the Real Property Act 1900 (“the RPA”) provides as follows:
“(3) Unless the Supreme Court has made an order dispensing with service it may not hear an application made under subsection (1) [to extend operation of a caveat] unless it is satisfied that all interested parties disclosed by the notice which gave rise to the application have been served with copies of the application before the hearing.”
It is clear from the face of the notice that the Westpac Banking Corporation falls within the category of "interested parties disclosed by the notice which gave rise to the application". The subsection, by its terms, precludes the making of an order unless a copy of the application has been served on those parties. In those circumstances I yesterday directed the addition of Westpac Banking Corporation as a second defendant to the proceedings and provided for the summons to be served on it. The proceedings were adjourned until this afternoon.

3 This afternoon, Mr Thomas Shaw, the plaintiff’s son, who by leave granted by consent appears on behalf of the plaintiff, applies for a further adjournment of the matter and objects to the matter proceeding on the basis that the Court may not hear the application to extend the caveat because it will not be satisfied that all interested parties disclosed by the notice have been served. He says that this is so because the Westpac Banking Corporation, as the applicant for the notice, is described as "being a person entitled to an estate or interest in the above land by virtue of Dealing No 5531077". No further particular of that dealing is given in the notice itself. That dealing is also in evidence and, if one adverts to that dealing, it is plain that the situation is that Westpac Banking Corporation is an incoming mortgagee to facilitate the purchase of the property by two persons named Fallato, who took the property under transfer 5531076 which has also been lodged in the Land Titles Office and who obviously, on completion of their purchase, granted mortgage 5531077 to Westpac Banking Corporation. In some circumstances, of course, the persons referred to in a particular document have been held by the courts to include persons by reference, being persons who are named not in the document itself but in a document to which the first document makes reference. Bearing in mind, however, the terms and the purpose of s 74K of the RPA, I am of the view that the words "all interested parties disclosed by the notice which gave rise to the application" ought not be construed in that way. The words should be limited to parties who are actually disclosed as having an interest on the face of the lapsing notice. The point made on behalf of the plaintiff is not without logical force, but is deprived of efficacy by the view which I have just stated of the correct interpretation of the subsection (and see Strasburger Enterprises Pty Ltd v Cadomet Pty Ltd, 18 March 1993, NSWSC, Hodgson J, unreported).

4 The joinder or service of the Fallatos as purchasers under the transfer is not, therefore, necessitated by s 74K before the Court can act under the section. Of couse, whatever the section provides, general principles require the joinder of all intersted parties if their rights may be affected by the adjudication: Ryu v Lee (1996) 7 BPR 14,678. However, I do not, in all the circumstances of the matter, and, in particular, the clear invalidity of the caveat on its face, propose as a matter of discretion to order the joinder of the Fallatos as parties to the proceedings before I deal with them. The application for an adjournment is, therefore, refused.

oOo

Last Modified: 04/09/1999