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Wu v Dardaneliotou

Wu v Dardaneliotou

Case [2008] NSWSC 1319 1 December 2008

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CITATION: Wu v Dardaneliotou [2008] NSWSC 1319

HEARING DATE(S): 1 December 2008

JURISDICTION: Equity Division
Duty List

JUDGMENT 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 6.7

CATEGORY: 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 Secondly, there was a proposal to file a cross-claim seeking an order that the caveat be withdrawn in two days.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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wu v Dardaneliotou

Details

AGLC: Wu v Dardaneliotou [2008] NSWSC 1319
Case: [2008] NSWSC 1319
Decision Date: 1 December 2008

CaseChat Overview and Summary

In the case of Wu v Dardaneliotou, the plaintiff sought an extension of the operation of a caveat against dealings registered in his name over certain Torrens title land. The defendant, who was the registered proprietor of the land, applied for the caveat to be removed and for the plaintiff to pay her costs on an indemnity basis. The dispute centred on whether the plaintiff had a caveatable interest and whether the application for the extension should be dismissed for the manner in which it was conducted.

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.

Orders