CITATION: Wu v Dardaneliotou [2008] NSWSC 1319 HEARING DATE(S): 1 December 2008 JURISDICTION: Equity Division
Duty ListJUDGMENT OF: Brereton J EX TEMPORE JUDGMENT DATE: 1 December 2008 DECISION: Application for extension of operation of caveat refused. CATCHWORDS: REAL PROPERTY – Torrens title – caveats against dealings – application to extend operation of caveat until further order – where caveat not provided in evidence – whether plaintiff has a caveatable interest. - PROCEDURE – costs – indemnity costs – whether plaintiff should pay defendant’s costs on indemnity basis. - PROCEDURE – duty judge applications – how not to conduct caveat application. LEGISLATION CITED: (NSW) Real Property Act 1900, s 74K
(NSW) Uniform Civil Procedure Rules, r 6.7CATEGORY: Procedural and other rulings PARTIES: Benxia Wu (plaintiff)
Stratigoula Dardaneliotou (defendant)FILE NUMBER(S): SC 5778/08 COUNSEL: Mr A R Martin (sol) (plaintiff)
Mr F Santisi (defendant)SOLICITORS: Martin Legal (plaintiff)
Tsintilas & Associates (defendant)
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY LIST
BRERETON J
Monday, 1 December 2008
5778/08 Benxia Wu v Stratigoula Dardaneliotou
JUDGMENT (ex tempore)
1 HIS HONOUR: By Summons filed on 20 November 2008, and first returnable today, the plaintiff Benxia Wu claims an order extending the operation of caveat AE296667 until further order.
How not to conduct caveat proceedings
2 It must be said that these proceedings are hardly a model of how such applications should be conducted in the Duty Judge list. First, as I have said many times in the past, a Summons claiming an order extending operation of a caveat must include a claim for final relief. A Summons which claims, as this one does, only an order extending the operation of a caveat until further order is defective in not claiming any final relief. Secondly, there was a proposal to file a cross-claim seeking an order that the caveat be withdrawn in two days. As the caveat will lapse in two days if not extended, that cross-claim was entirely superfluous. Thirdly, the Summons was also met by a proposal to file a motion for summary dismissal, returnable on the first return date. The relief sought in a Summons can be granted on any occasion on which the Summons is before the Court, and the Summons can be dismissed on any occasion on which it is before a Court [(NSW) Uniform Civil Procedure Rules, r 6.7]; there is no use or utility in a Notice of Motion, returnable on the first return date, claiming summary dismissal. All this goes to incurring costs quite unnecessary for the parties to bear, and it is for that reason that I have made special costs orders in respect of some of the costs that have been incurred as the matter has proceeded.
3 Fourthly, and somewhat remarkably, in the context that, if it is to extend a caveat, the Court must be satisfied that the caveator's claim “has or may have substance”, the relevant caveat in this proceeding does not…
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- AGLC
- Wu v Dardaneliotou [2008] NSWSC 1319
- Case
- [2008] NSWSC 1319
- Decision Date
CaseChat Overview and Summary
The court had to determine if the plaintiff possessed a caveatable interest to justify the registration of the caveat. The plaintiff did not provide any evidence to substantiate the existence of such an interest. The court also examined whether the plaintiff's application for an extension of the caveat's operation should be dismissed due to procedural shortcomings. Specifically, the court considered the plaintiff's failure to follow the proper procedure in making the application, including not serving the necessary documents on the defendant as required by the relevant legislation.
The court found that the plaintiff had not demonstrated a caveatable interest. Additionally, the application for the extension was dismissed due to procedural errors. The court held that the plaintiff was required to pay the defendant's costs on an indemnity basis, as the application was not conducted in accordance with the statutory requirements. Consequently, the plaintiff's application for an extension of the caveat was dismissed, and he was ordered to pay the defendant's costs on an indemnity basis.
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