Walid Assaad v Basmat Assaad; Basmat Assaad v Walid Assaad

[2025] NSWSC 236

Supreme Court

New South Wales

Medium Neutral Citation:

Walid Assaad v Basmat Assaad; Basmat Assaad v Walid Assaad [2025] NSWSC 236

Hearing dates:

7 March 2025

Date of orders:

7 March 2025, 24 March 2025

Decision date:

24 March 2025

Jurisdiction:

Common Law

Before:

Stern J

Decision:

On 7 March 2025:

(1) Dismiss the cross-claim filed on 28 June 2024 on the basis of the non-attendance of the cross-claimant under r 29.7 of the Uniform Civil Procedure Rules.

(2)   Judgment for the plaintiff for possession of the whole of the land comprised in lot 351 in deposited plan 16186 with folio identifier 351/16186 (the Villawood Property).

(3)   The defendants are to provide vacant possession of the Villawood Property to the plaintiff within 30 days of 7 March 2025.

(4) Within 37 days of these orders, any notice of motion filed pursuant to r 39.1 of the Uniform Civil Procedure Rules and accompanying affidavit be filed and provided to the Chambers of Stern JA and served on the defendant.

(5)   The motion referred to in (4) be returnable before Stern J in chambers.

(6)   Grant leave to the plaintiff to file evidence and submissions by 4pm on 7 March 2025 as to whether:

(a)   caveat AT839873 relates to both the property at 79 Koonoona Avenue, Villawood, NSW 2163 and the property at 51 Sturt Avenue, Georges Hall, NSW 2198; and

(b)   the Court has the power to order the withdrawal of caveat AT839873 in relation to only the property at 79 Koonoona Avenue, Villawood, NSW 2163.

(7)   Note that the plaintiff has consented to any orders regarding the withdrawal of caveat AT839873 being made in chambers.

(8)   Defendants are to pay the plaintiff’s costs of the claim and cross-claim.

(9)   These orders are to be served on the defendants.

(10)   The plaintiff should have leave to file an affidavit sworn by the plaintiff on 6 March 2024 by 4 pm on 7 March 2025.

On 24 March 2025:

(1) Order pursuant to s 74MA of the Real Property Act 1900 (NSW) that by 4 pm on 31 March 2025 the first defendant remove the caveat which bears the number AT839873 to the extent that it relates to lot 351 in deposited plan 16186 with folio identifier 351/16186.

(2) For the avoidance of doubt, order for the purpose of s 74MA(3) of the Real Property Act 1900 (NSW) that if the first defendant fails to remove the caveat referred to in Order 1 by 4 pm on 31 March 2025 then the caveat will lapse once a copy of these orders are lodged with the Registrar-General after that time and the Registrar-General is authorised to remove it from the Register.

(3)   These orders are to be served on the defendants.

Catchwords:

LAND LAW – possession – possession sought by registered proprietor – where defendants did not attend hearing - judgment entered

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 104

Evidence Act 1995 (NSW), s 59

Real Property Act 1900 (NSW), ss 74F, 74MA, 74P

Residential Tenancies Act 2010 (NSW)

Uniform Civil Procedure Rules 2005 (NSW), rr 14.23(2), 29.7, 36.8(1), 39.1

Cases Cited:

Crowe-Maxwell v Frost (2016) 91 NSWLR 414; [2016] NSWCA 46

Hanson Construction Materials Pty Ltd v Roberts (2016) 93 NSWLR 1; [2016] NSWCA 240

ICM Agriculture Pty Ltd v Young [2009] FCA 109

Kater v Kater (1960) 104 CLR 497; [1960] HCA 96

KPE Superannuation Fund Pty Ltd v QRM Holdings Pty Ltd [2022] NSWCA 284

Sydney Cove Redevelopment Authority v Stewart [1972] 2 NSWLR 735

Category:

Principal judgment

Parties:

Walid Assaad (Plaintiff / Cross-Defendant)
Basmat Assaad (First Defendant / First Cross-Claimant)
Ahlam Assaad (Second Defendant)
Hamad Assaad (Third Defendant)
Tarek Assaad, otherwise known as Khaled Sadie (Fourth Defendant / Second Cross-Claimant)

Representation:

Counsel:
J Mack (Plaintiff / Cross-Defendant)

Solicitors:
ABH Legal (Plaintiff / Cross-Defendant)

File Number(s):

2023/357915

Publication restriction:

Nil

JUDGMENT

1. These proceedings involve:

1. a claim by the plaintiff, Walid Assaad, seeking possession of a property located at 79 Koonoona Avenue, Villawood NSW, described at Folio 351/16186 (the Villawood Property), withdrawal of caveat AT839873 lodged by the first defendant to the extent that it relates to the Villawood Property (the Caveat), and declaratory relief; and

2. a cross-claim by the first and fourth defendants against the plaintiff, seeking declaratory orders, a vesting order as regards the Villawood Property and a property at 51 Sturt Avenue, Georges Hall, NSW (the Georges Hall Property), an order for sale of the Georges Hall Property, an account and equitable compensation.

2. This is a dispute between family members. The defendants are, in order, the plaintiff’s mother Basmat Assaad, his sister Ahlam Assaad, his nephew Hamad Assaad (Junior), and his brother Tarek Assaad.

3. For convenience, in this judgment I will refer to the first and second cross-claimants simply as the first and fourth defendants (respectively), and the cross-defendant as the plaintiff.

4. The proceedings were heard on 7 March 2025. None of the defendants appeared at the hearing and none were represented. No explanation for the defendants’ non-appearance was given.

5. By way of context, a solicitor (M Khan of Lyons Law Group) was on the record for the defendants until 29 October 2024, when a notice of ceasing to act was filed. The defendants were also represented by counsel at a hearing before Davies J on 16 September 2024. During the hearing on 16 September 2024, Davies J made it clear that the parties should come back after the defendants’ evidence was served to fix a hearing date, and the matter was stood over to 2 December 2024 at 9.30 am. Davies J identified that his associate would send a letter to the parties seeking an estimate of the length of the final hearing.

6. By email of 26 November 2024 to Mr Khan and to the plaintiff’s solicitors, the associate to Davies J asked the parties to provide an estimate of the length of the final hearing by 29 November 2024. Mr Khan responded that he was no longer instructed in the matter and had forwarded this correspondence to the defendants and requested that the solicitor with carriage of the matter attend to it. There was no response to this email from the defendants and there has been no solicitor on the record for the defendants since 29 October 2024.

7. On 3 December 2024 the matter was set down for hearing on 7 March 2025, and that hearing date was confirmed at directions hearings on 20 December 2024 and 7 February 2025. The defendants did not appear and were not represented at either of those directions hearings. The orders of 3 December 2024 listing the matter for hearing on 7 March 2025, and the orders of 20 December 2024 and 7 February 2025 confirming the hearing date, were sent by registered post to the defendants at the Villawood Property, which is the only address the Court has for the defendants. Further, a letter from my chambers identifying that this matter was listed for hearing on 7 March 2025, and referencing the requirements of Practice Note SC CL6, was sent by registered post to the defendants at this address on 3 March 2025. In this letter the defendants were asked to confirm by email if they intended to rely on any evidence or submissions at the hearing. Tracking data indicates that this was delivered. No response was received. In light of the above, I was satisfied that the defendants had been given notice of the hearing on 7 March 2025.

8. The defendants have also failed to comply with the Court’s orders of 16 September 2024, 2 December 2024 and 20 December 2024 as to the filing of evidence in response to the plaintiff’s evidence and in chief on the cross-claim. They have not sought to explain this non-compliance.

9. As I was satisfied that the defendants had been served with notice of the hearing date, it was appropriate for the hearing to proceed notwithstanding the defendants’ absence and without any submissions being advanced by them or on their behalf. Such a course is permitted under Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 29.7(2).

10. At that hearing, I made the following orders:

1. Dismiss the cross-claim filed on 28 June 2024 on the basis of the non-attendance of the cross-claimant under r 29.7 of the Uniform Civil Procedure Rules.

2. Judgment for the plaintiff for possession of the whole of the land comprised in lot 351 in deposited plan 16186 with folio identifier 351/16186 (the Villawood Property).

3. The defendants are to provide vacant possession of the Villawood Property to the plaintiff within 30 days of 7 March 2025.

4. Within 37 days of these orders, any notice of motion filed pursuant to r 39.1 of the Uniform Civil Procedure Rules and accompanying affidavit be filed and provided to the Chambers of Stern JA and served on the defendant.

5. The motion referred to in (4) be returnable before Stern J in chambers.

6. Grant leave to the plaintiff to file evidence and submissions by 4pm on 7 March 2025 as to whether:

1. caveat AT839873 relates to both the property at 79 Koonoona Avenue, Villawood, NSW 2163 and the property at 51 Sturt Avenue, Georges Hall, NSW 2198; and

2. the Court has the power to order the withdrawal of caveat AT839873 in relation to only the property at 79 Koonoona Avenue, Villawood, NSW 2163.

7. Note that the plaintiff has consented to any orders regarding the withdrawal of caveat AT839873 being made in chambers.

8. Defendants are to pay the plaintiff’s costs of the claim and cross-claim.

11. Following the hearing, I also ordered on 7 March 2025 that:

1. the orders set out above should be served on the defendants; and

2. the plaintiff should have leave to file an affidavit sworn by the plaintiff on 6 March 2024 by 4 pm on 7 March 2025.

12. These are my reasons for making those orders and for making further orders relating to the withdrawal of the Caveat.

Procedural background

13. The proceedings were commenced by statement of claim on 10 November 2023. An amended statement of claim was filed on 17 April 2024. Whilst the amended statement of claim included a claim for damages under s 74P of the Real Property Act 1900 (NSW), that claim was not pressed at the hearing.

14. By defence filed on 5 June 2024, the defendants denied the plaintiff’s entitlement to possession and asserted, broadly, that the first defendant had the benefit of a tenancy over, or an interest “in the nature of a life estate” in, the Villawood Property and/or that the plaintiff was estopped from denying that the first defendant had a beneficial interest in the Villawood Property. The statement of cross-claim was filed on 28 June 2024.

15. On 12 July 2024 the first and fourth defendants were ordered to file and serve an amended cross-claim. No amended cross-claim has been filed or served.

16. On 25 July 2024 the plaintiff’s solicitor requested copies of documents referred to in the statement of cross-claim. There has been no substantive response to this request.

Evidence

17. At the hearing on 7 March 2025, the plaintiff relied upon affidavits which he had sworn on 28 October 2024 and 6 March 2025, documents exhibited to the first of these affidavits including the register of title for the Villawood Property and a transfer of that property to the plaintiff, and upon an admission in the defence that the plaintiff is the registered proprietor of the Villawood Property. The affidavit sworn on 6 March 2025 simply went to one of the requirements of UCPR, r 36.8(1), to enable judgment for possession of land to be given against a defendant in his or her absence. In the light of the limited ambit of this affidavit, and that it was filed to deal with the eventuality of the defendants not appearing at the hearing on 7 March 2025, I permitted the affidavit to be read notwithstanding that it was not given to the Court in advance of the hearing.

18. As I have already noted, no evidence was filed by any of the defendants. Both the defence and statement of cross-claim were verified by affidavit (respectively from the defendants’ then solicitor and from the first defendant) as required by UCPR, r 14.23(2), but no attempt was made by the defendants to rely upon these affidavits of verification as evidence in support of the defence or cross-claim. In any event, whilst in some circumstances a verified pleading can be admitted as evidence of the facts stated in the pleading or of the deponent’s belief: ICM Agriculture Pty Ltd v Young [2009] FCA 109 (“ICM Agriculture”) at [76] (Lindgren J); Crowe-Maxwell v Frost (2016) 91 NSWLR 414; [2016] NSWCA 46 at [30], [37], [39] (Beazley P, Macfarlan and Gleeson JJA agreeing), I would have rejected both documents under s 59 of the Evidence Act 1995 (NSW) as inadmissible hearsay given that neither deponent was present to give evidence at the hearing.

19. To the extent that the assertions in these documents are conclusions rather than statements of underlying fact, as for example, the assertion that a tenancy existed or that the first defendant had a life estate in the property without any detail as to the basis upon which these interests were asserted: defence at [3] and [19], they would also have been rejected on that basis: ICM Agriculture at [76] and [78]. The same applies to the assertion in the defence at [13] as to the plaintiff’s knowledge. Moreover, to the extent that the statement of cross-claim makes allegations of matters about which the first defendant is not asserted to have personal knowledge, without identifying the basis of her statements, it is not evidence that she could properly give.

20. It follows that my understanding of the background to the proceedings derives from the evidence relied upon by the plaintiff. Given the defendants’ lack of engagement after September 2024, and their non-appearance at the hearing, none of this evidence was challenged.

Factual background

21. The plaintiff is the registered proprietor of the Villawood Property, as is clear from a title search annexed to the plaintiff’s affidavit. By registered dealing dated 19 December 2019, the plaintiff as “Sole Proprietor” purchased the property from a company called Tyres For Less Pty Limited (TFL), described as being “in external administration in liquidation”, for consideration of $630,000.

22. At some time prior to 2021, the plaintiff says that he permitted the first and third defendant (who was aged 17 years in 2021) to temporarily occupy the Villawood Property because the first defendant had bad memories of the Georges Hall Property where she had been staying (and where the plaintiff’s brother Hamad Assaad was killed (according to the statement of cross-claim, on 25 October 2016)). No rental agreement was entered into and no rent has been paid. For a time the plaintiff lived at the Villawood Property with the first and third defendants.

23. The plaintiff says that both the first and third defendants acknowledged that their occupation of the Villawood Property would be temporary. He says that, before she moved in, he told the first defendant that she could not stay at the Villawood Property forever and that he would either sell or rent it out in the future. He says that at some time prior to 8 September 2022 he also said to the first and third defendants:

“You can no longer stay here, you need to get out of my house because I want to sell”.

24. After this, in about May and early June 2022, he also asked the first defendant whether she had found a place to stay and told her that he wanted to sell the Villawood Property in the next six months.

25. At some time prior to 8 September 2022 the second defendant moved into the Villawood Property. The plaintiff says this was without his permission. Again, no rental agreement was signed or rent paid. Subsequent to this, an apprehended violence order (AVO) was taken out which prevented the plaintiff from living at the Villawood Property. He was also charged with a number of offences. The status of those charges, or the basis of the AVO, is not clear on the evidence before the Court.

26. The plaintiff then moved into the Georges Hall Property but had to leave that property on 3 April 2024 at which point he says the police identified him as a person in need of protection and obtained orders against the second defendant. The plaintiff does not explain why the police took these steps. The plaintiff says that since then he has been in fear of the second and third defendants and has been living in hotels and Airbnbs at some expense.

27. The plaintiff says that since around March 2023, the fourth defendant has also been living at the Villawood Property without his permission, again without any rental agreement being signed or rent paid.

28. According to the plaintiff’s affidavit sworn 6 March 2025, as at 17 April 2024 when the amended statement of claim was filed, the only persons occupying the Villawood Property were the four defendants.

29. The plaintiff says that he has never received rent from any of the defendants, or from anyone on behalf of the defendants. He wishes to sell the Villawood Property, hence he brought these proceedings.

30. On 7 February 2024, the first defendant registered caveats in respect of both the Villawood Property and the Georges Hall Property (both of which were registered with the one number: AT839873). The details supporting the claim include:

“Caveator is claiming equitable interest in the Supreme Court of NSW in 51 Sturt Avenue, Georges Hall NSW 2198 and 79 Koonoona Avenue Villawood NSW 2163. The matter is in Court. Caveator is defendant. Proprietor Mr Walid Assaad is the Plaintiff.”

31. These details reflect the cross-claim in these proceedings, in which the first and fourth defendants seek equitable relief as against the plaintiff in respect of both properties.

32. In February 2024 the plaintiff instructed an agent for sale of both the Villawood and Georges Hall Properties on a four month contract. By email of 26 February 2024, Andreas Kartsioulis of Ray White Bankstown told the plaintiff that he had a potential buyer for the Villawood Property who was seeking vacant possession.

33. By these proceedings, the plaintiff has made it clear to all defendants that he wants possession of, and to sell, the Villawood Property and that any permission that the first and fourth defendants may have been given at some time prior to 2021 to live there temporarily has been withdrawn.

The plaintiff’s claim

34. The plaintiff’s claim is quite simple. He relies upon the fact that he is the registered proprietor of the Villawood Property, which he says he purchased for valuable consideration without financial assistance from any of the defendants. He says that the first and fourth defendants had a tenancy at will, and that in 2022 he gave the first and third defendants oral notice to vacate, but they did not do so. He says that the tenancy at will was terminated either by that oral notice or by service of the statement of claim and amended statement of claim. I accept that service of these pleadings were acts inconsistent with the plaintiff wishing the tenancy to continue and the first and fourth defendants were given notice of this, such that it could not now be suggested (and indeed the defendants did not suggest) that there was an ongoing tenancy at will: Kater v Kater (1960) 104 CLR 497 at 506 (Dixon CJ, McTiernan, Kitto, Taylor and Menzies JJ); [1960] HCA 96; see also Sydney Cove Redevelopment Authority v Stewart [1972] 2 NSWLR 735 at 741 where Hutley AJA held that service of a writ of ejectment would determine a tenancy at will. The plaintiff also says the second and fourth defendants have never had permission to reside at the Villawood Property. On this basis he seeks possession and an order that the first defendant withdraw the Caveat.

35. The defence filed 5 June 2024 denies that the plaintiff is entitled to the relief claimed. The defendants admit that the plaintiff is the registered proprietor of the Villawood Property but claim that he holds the Villawood Property on trust for the first and fourth defendants and the estate of Hamad Assaad. They also say that, as at 19 December 2019 when the plaintiff purchased the property, the first defendant had the benefit of a tenancy of the property (the Tenancy), pursuant to which she had and still maintains a right of exclusive possession under the Residential Tenancies Act 2010 (NSW), and that the plaintiff was aware of this. Thus, they say, the transfer of the Villawood Property to the plaintiff was subject to the Tenancy, which was affirmed and/or renewed by the plaintiff after he purchased the Villawood Property, and that the second to fourth defendants occupy the Villawood Property with the express permission of the first defendant.

34. This is the only tenancy of the Villawood Property alleged in the defence.

35. Further, or in the alternative, the defendants say that the first defendant’s occupation of the Villawood Property was pursuant to an interest in the nature of a life estate (the Life Estate). They also say that the plaintiff is estopped from denying the existence of the Life Estate.

36. By way of further contention, the defendants allege that for the reasons set out in the statement of cross-claim, the plaintiff was aware as at October 2016 that the property was held by TFL for the benefit of the fourth defendant and/or Hamad Assaad. This, in turn, is based upon an allegation in the statement of cross-claim that, in or about May 2013, the fourth defendant and Hamad Assaad entered into an oral agreement with Leo Lewin (who they say was then the director of TFL) that the Villawood Property would be purchased by TFL, using funds from the fourth defendant and Hamad Assaad, and that the Villawood Property would be held by TFL on their behalf. It is alleged in the statement of cross-claim that from October 2016 the plaintiff was aware of this.

37. The defence also alleges an agreement in October 2016 between the first defendant, the fourth defendant, and Hamad Assaad that if Hamad Assaad should die, the first defendant would either retain his interest in the Villawood and Georges Hall Properties or would receive the benefit of the properties and a life estate to live in either of the properties. It is alleged that the plaintiff was present when this agreement was made and was “aware of and did not dispute” that agreement.

38. It is said that the first defendant resided at the Georges Hall Property and the Villawood Property in reliance upon that agreement. This is said to be a change of position which would make it unconscionable for the plaintiff to resile from “the Representation”. Whilst “the Representation” is not defined in the defence, it appears to refer to a representation pleaded as the “October 2016 Representation” in the statement of cross-claim. This is a representation by the fourth defendant and Hamad Assaad to the first defendant that, if Hamad Assaad died, she was to be permitted to live in either the Georges Hall Property or the Villawood Property without having to pay rent, but having to pay rates and tax and to maintain the property, and that she was to have any interest Hamad Assaad had in the property.

39. As is clear, the defence was dependent upon factual assertions, none of which could be made out without evidence.

The cross-claim by the first and fourth defendants

42. By statement of cross-claim filed on 28 June 2024, the first and fourth defendants sought declarations as regards both the Villawood Property and the Georges Hall Property. Broadly, the relief sought was a declaration that the plaintiff holds both properties on trust for the first defendant or the first and fourth defendants and the estate of Hamad Assaad, a declaration that the first defendant has a tenancy of the Villawood Property, and orders that the Villawood and Georges Hall Properties be vested in the first defendant or the fourth defendant and the estate of Hamad Assaad or sold with the proceeds distributed, including to the first and/or fourth defendants and/or the estate of Hamad Assaad.

43. It is unnecessary to delve deeply into the allegations made in the cross-claim. It depended upon allegations that could not possibly succeed without evidentiary support. By way of example, in large measure the statement of cross-claim depended upon asserted oral agreements between the fourth defendant, Hamad Assaad and Leo Lewin about the Villawood and Georges Hall Properties. Those agreements simply could not be established without evidence.

44. Beyond this, the allegations in the statement of cross-claim turned upon an alleged family arrangement, which itself turned in part upon the agreements described above and upon the asserted intention of the fourth defendant, Hamad Assaad and TFL. Again, this allegation could not succeed without any supporting evidence. The same is true of the alleged representation described above at [40], and as to the alleged oral agreement between the first and fourth defendant, following the death of Hamad Assaad, which was said to have given rise to the Tenancy.

Dismissal of the statement of cross-claim

45. In the plaintiff’s written submissions filed on 5 March 2025, he sought dismissal of the cross-claim under UCPR, r 29.7, on account of the non-attendance of either of the cross-claimants. I was satisfied that it was appropriate to make such an order, given the history outlined above and that the defendants had been given reasonable notice of the hearing. The first and fourth defendants had been given ample opportunity to file evidence in support of their cross-claim and to attend the hearing but, for reasons which were wholly unexplained, failed to do so.

Determination of the plaintiff’s claim

46. I was satisfied that the plaintiff, as registered proprietor, was entitled to judgment for possession of the whole of the Villawood Property. None of the allegations in the defence could be made good without evidence. There was thus no basis for refusing the plaintiff’s claim for possession.

47. For this reason I ordered that judgment for possession be given to the plaintiff. I did so notwithstanding that the plaintiff’s affidavit of 6 March 2025 did not include a statement that the defendants had been duly served with the originating process: cf UCPR, r 36.8(1)(b). A defence to the amended statement of claim was filed on behalf of all defendants and all defendants were represented at the directions hearing before Davies J on 16 September 2024. I am satisfied that the defendants were all aware of the plaintiff’s claim for possession of the Villawood Property as advanced in the statement of claim and amended statement of claim.

48. In his submissions the plaintiff also asked that the Court grant him leave to issue a writ for possession on the basis that this writ not issue for 30 days. The plaintiff has not filed a notice of motion seeking a writ for possession under s 104 of the Civil Procedure Act 2005 (NSW). Given that the plaintiff’s written submissions were not served on the defendants and that the defendants did not appear at the hearing, I declined to make that order. Notwithstanding their non-engagement, I considered that in the circumstances of this case it was preferable for the defendants to have notice that the plaintiff was seeking to execute a writ of possession. On this basis I made the order outlined above at [10(4)].

49. In determining whether to order the removal of a caveat under s 74MA, the matter is to be approached by asking whether an interlocutory injunction would be granted to protect the interest claimed in the caveat, which in turn raises two questions (on both of which the caveator bears the onus): first, whether there is a serious question to be tried concerning the interest claimed in the property that is sought to be protected by the caveat and, second, whether the balance of convenience is in favour of maintaining the caveat: Hanson Construction Materials Pty Ltd v Roberts (2016) 93 NSWLR 1; [2016] NSWCA 240 at [77]; Abraham v Abraham [2012] NSWSC 254 at [8] as applied in KPE Superannuation Fund Pty Ltd v QRM Holdings Pty Ltd [2022] NSWCA 284 (Macfarlan JA, Ward P and Mitchelmore JA agreeing).

50. In the absence of any evidentiary support for the first defendant being entitled to any equitable relief in respect of the Villawood Property, applying this approach there is no question in my mind that the Caveat should be withdrawn. There is no serious question to be tried.

51. A question arose during the hearing, however, as to whether the Caveat could be withdrawn in circumstances where the Register records caveat with the number AT839873 relating to both the Villawood Property and the Georges Hall Property.

52. Subsection 74F(1) of the Real Property Act provides that:

“Any person who, by virtue of any unregistered dealing or by devolution of law or otherwise, claims to be entitled to a legal or equitable estate or interest in land under the provisions of this Act may lodge with the Registrar-General a caveat prohibiting the recording of any dealing affecting the estate or interest to which the person claims to be entitled”.

53. This suggests that a caveat protects a claimed estate or interest in a particular piece of land.

54. Subsection 74F(5) requires that a caveat lodged under s 74F be in the approved form, and specifies a number of matters including, at s 74F(5)(b)(v):

“the prescribed particulars of the legal or equitable estate or interest, or the right arising out of a restrictive covenant, to which the caveator claims to be entitled”.

55. Again, this suggests that it is only one legal or equitable estate or interest that is protected by a caveat.

56. Under s 74G the Registrar-General is required to “record in the Register such particulars of the caveat as the Registrar-General considers appropriate”. On its face, this permits the Registrar-General to record more than one caveat on one numbered document.

57. Section 74J, which deals with lapsing of caveats, applies where “the registered proprietor of an estate or interest in the land described in the caveat” makes an application that the caveat lapse. That is consistent with a caveat relating to a particular piece of land.

58. Having regard to these provisions, I am satisfied that the entry in the Register with the number AT839873 records two caveats, relating to two separate pieces of land, being the Villawood Property and the Georges Hall Property. That is consistent with the terms of s 74F(1), which turn on whether a proposed caveator claims to be entitled to a legal or equitable estate or interest in land. Here, the first defendant as caveator claimed to be entitled to equitable interests in both the Villawood Property and the Georges Hall Property. These were two separate claimed equitable interests in land. Under s 74F(1), this claim supported applications for two caveats, the Caveat and another caveat relating to the Georges Hall Property. That is so irrespective of the fact that these two caveats are reflected in one entry in the Register, with the number AT839873.

59. In any event, as the plaintiff submits, s 74MA of the Real Property Act enables “[a]ny person who is or claims to be entitled to an estate or interest in the land described in a caveat” to apply to the Supreme Court for an order that the caveat be withdrawn. This confers upon the plaintiff the right to apply for an order that the Caveat (which related only to the Villawood Property) be withdrawn. Even if I am wrong in my conclusion that there are two caveats here, I am satisfied that where a caveat relates to two separate pieces of land, s 74MA permits the Court to order that the caveat be removed only as regards one of those pieces of land. Any other construction would be inconsistent with the ambit of s 74MA, and it would make no sense for an applicant entitled to an interest in part only of the land described in a caveat to be able to apply for the caveat to be withdrawn insofar as it extends beyond the land in which she or he has an interest.

60. I will thus make an order under s 74MA(2) of the Real Property Act that the first defendant withdraw caveat recorded with on the Register with the number AT839873 to the extent that it relates to the Villawood Property by 4 pm on 31 March 2025. By operation of s 74MA(3), if the first defendant does not comply with that order, the Caveat will lapse if a copy of my orders are lodged with the Registrar-General at any time after 4 pm on 31 March 2025. For the avoidance of doubt, I will make an order authorising the Registrar-General to remove the Caveat in those circumstances.

61. Given the orders I propose to make, and the terms of this judgment, there is no utility in granting the declaratory relief sought by the plaintiff, being a declaration that the defendants have no interest in the property.

Conclusion

62. Given the plaintiff’s success and the defendants’ failure to put on evidence or submissions or attend the hearing of which they had notice, I ordered that the plaintiff should have his costs of the claim and cross-claim.

63. The further orders of the Court are:

1. Order pursuant to s 74MA of the Real Property Act 1900 (NSW) that by 4 pm on 31 March 2025 the first defendant remove the caveat which bears the number AT839873 to the extent that it relates to lot 351 in deposited plan 16186 with folio identifier 351/16186.

2. For the avoidance of doubt, order for the purpose of s 74MA(3) of the Real Property Act1900 (NSW) that if the first defendant fails to remove the caveat referred to in Order 1 by 4 pm on 31 March 2025 then the caveat will lapse once a copy of these orders are lodged with the Registrar-General after that time and the Registrar-General is authorised to remove it from the Register.

3. These orders are to be served on the defendants.

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Decision last updated: 24 March 2025