Supreme Court
New South Wales
Medium Neutral Citation: The Woodsman Pty Ltd v Jozic [2018] NSWSC 1311 Hearing dates: 16 August 2018 Date of orders: 16 August 2018 Decision date: 16 August 2018 Jurisdiction: Equity Before: Darke J Decision: Summons seeking orders in respect of a caveat dismissed with costs.
Catchwords: LAND LAW – caveats – where the nature of the claimed interest is uncertain on its face – deficiency in caveat cannot be overcome by s 74L of the Real Property Act 1900 (NSW) or by orders permitting the amendment of the caveat – inappropriate to grant leave to lodge a further caveat under s 74O of the Real Property Act 1900 (NSW) where the interest to be claimed in a fresh caveat would not be in respect of the same estate, interest or right Legislation Cited: Real Property Act 1900 (NSW), s 74K, s 74L, s 74O Cases Cited: Allen Taylor & Co Pty Ltd v Harrison [2010] NSWSC 1021
Circuit Finance Pty Ltd v Crown and Gleeson Securities Pty Ltd [2005] NSWSC 997
Depsun Pty Ltd v Tahore Holdings Pty Ltd (1990) 5 BPR 11,314
FTFS Holdings Pty Ltd v Business Acquisitions Australia Pty Ltd [2006] NSWSC 846
Hanson Construction Materials Pty Ltd v Vimwise Civil Engineering Pty Ltd [2005] NSWSC 880
In The Marriage of Stevens (1991) 105 FLR 459
Multi-Span Constructions No 1 Pty Ltd v 14 Portland Street Pty Ltd [2001] NSWSC 696
Ron Medich Properties Pty Ltd v McGurk [2010] NSWSC 552
Windella (NSW) Pty Ltd v Hughes (1999) 49 NSWLR 158
Warner v Andrews [2011] NSWSC 956Category: Principal judgment Parties: The Woodsman Pty Ltd (Plaintiff)
Alen Jozic (Defendant)Representation: Counsel:
Solicitors:
Mr D W Robertson (Plaintiff)
Mr J A Rose (Defendant)
E C Legal (Plaintiff)
Sewell & Kettle Lawyers (Defendant)
File Number(s): 2018/198467 Publication restriction: None
Judgment – EX TEMPORE
-
By a Summons filed on 27 June 2018, the plaintiff seeks an order under s 74K of the Real Property Act 1900 (NSW) extending the operation of a caveat it has lodged against the titles to two properties owned by the defendant. In the alternative, an order is sought pursuant to s 74O of the Real Property Act for leave to lodge a further caveat. The proceedings were initiated following the service of a lapsing notice in respect of the caveat.
-
On 2 July 2018, an order was made by the Chief Judge in Equity extending the operation of the caveat to 23 July 2018. On 20 July 2018, I ordered that the operation of the caveat be extended up to 5pm today.
-
In support of the application, the plaintiff read two affidavits, affirmed by Kyle Ogden, on 27 June 2018 and 9 August 2018. In opposition to the application, the defendant read his affidavit affirmed on 20 July 2018.
-
I note that a number of objections to parts of the affidavits were notified but were not dealt with. As will become apparent, this was because I considered it was…
Keep reading for free
Create a free CaseChat account to read Woodsman Pty Ltd v Jozic and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2018] NSWSC 1311
- Decision Date
CaseChat Overview and Summary
The court first considered whether the deficiency in the caveat could be remedied under section 74L of the Act, which allows for the amendment of a caveat where it is defective. It found that the nature of the interest claimed by Jozic was uncertain and that this uncertainty could not be resolved through the amendment process. The court then examined whether leave should be granted under section 74O to lodge a further caveat. It held that such a course would not be appropriate because the interest proposed in the fresh caveat would not pertain to the same estate, interest, or right as the original caveat. Consequently, the court dismissed the application for leave to lodge a further caveat.
In summary, the court found that the claimant could not remedy the deficiencies in the original caveat through amendment or by lodging a new one. The claimant's application was dismissed, leaving the original caveat intact. The court's decision underscores the importance of clarity in the interests claimed in a caveat and the limited circumstances under which amendments or further caveats may be permitted.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.