Thomas v McKean

[2006] NSWSC 1207

CITATION:	Thomas v McKean [2006] NSWSC 1207
HEARING DATE(S):	27 October 2006
JURISDICTION:	Equity Division Duty List
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	10/27/2006
DECISION:	Summons for leave to lodge further caveat dismissed with costs.
CATCHWORDS:	REAL PROPERTY – Torrens Title – Caveats – application for leave to lodge further caveat – necessary for all co-owners having interest which would be affected by caveat to be joined.
LEGISLATION CITED:	Real Property Act 1900 (NSW), s 74O
PARTIES:	Graham Russell Thomas (plaintiff) Elena Ann McKean (defendant)
FILE NUMBER(S):	SC 5327/06
COUNSEL:	Mr C R de Robillard (plaintiff) Mr R E Quickenden (defendant)
SOLICITORS:	Nash Allen Williams & Wotton (defendant)

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

BRERETON J

Friday 27 October 2006

5327/06 Thomas v McKean

JUDGMENT (Ex tempore)

1 HIS HONOUR: This is an application for leave to lodge a further caveat pursuant to Real Property Act 1900 (NSW), s 74O, an earlier caveat lodged by the plaintiff in respect of the subject land having lapsed as a result of service of a lapsing notice issued at the request of the defendant, who was one of two registered proprietors. The other registered proprietor, who has not been joined as a defendant but who holds as tenant in common in equal shares with the defendant, is the son of the plaintiff.

2 As it seems to me, the first fundamental problem with these proceedings is, that although leave is sought to lodge a caveat which affects land of which two co-owners are the registered proprietors and the interest claimed in the caveat affects that of both registered proprietors, one registered proprietor – whose interest is obviously affected, has not been joined as a defendant. That is sufficient reason for holding that it is impossible to make the order sought in these proceedings, as presently constituted.

3 The second problem is that while the evidence on which the plaintiff relies discloses an arguable case that there was an agreement that he would be entitled to lodge a caveat in certain events, that agreement, so far as the evidence shows, was made between the plaintiff and his son, who as I have said is not joined as a party. There is absolutely no evidence to tie the defendant to any such agreement, or to establish that she had notice of it, or to show that she authorised the plaintiff's son, her then defacto partner, to enter any such agreement on her part.

4 In those circumstances, I do not see how the evidence begins to show an arguable case for a caveatable interest as against the defendant, whatever it might show against the plaintiff’s son, who is not a party. In those circumstances, I think the proceedings as presently framed are hopeless. I order that the summons be dismissed with costs.

5 Although there is much to be said for an award of indemnity costs in this case, ultimately I do not think the proceedings bear that degree of impropriety which justifies that course. I will not make an indemnity costs order.

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