White v Arambasic [2020] NSWSC 1376

Supreme Court New South Wales

Medium Neutral Citation: White v Arambasic [2020] NSWSC 1376 Hearing dates: 1 October 2020 Date of orders: 9 October 2020 Decision date: 09 October 2020 Jurisdiction: Common Law Before: Campbell J Decision: (1) Direct the defendant file his defence in these proceedings by Friday 16 October 2020; (2) Adjourn the plaintiff's motion for default judgment filed on 9 March 2020 for further directions on 29 March 2021 with liberty to apply on 14 days' notice to the defendant and the Court if the defendant defaults in compliance with Order 1; (3) On her motion filed on 26 February 2020, under r 36.1 Uniform Civil Procedure Rules 2005 (NSW), grant the plaintiff leave under s 74O(2) Real Property Act 1990 (NSW) to lodge a further caveat claiming an interest as a unregistered first mortgagee under the Loan Agreement dated 12 December 2012 and Deed of Mortgage dated 20 December 2012 in respect of the land contained in Folio Identifier 7/21/758615, being the property known as XXXXXXXXXX New South Wales XXXX until further order of the Court; (4) Subject to strict compliance with Order 1, under s 67 Civil Procedure Act 2005 (NSW) stay the proceedings until further order to the intent that proceedings between the parties in the Federal Circuit Court of Australia in matter numbered (P) DUC 403/2019 should be determined first and prior to these proceedings; (5) Adjourn prayers 2 and 3 of the defendant's amended Notice of Motion filed in Court on 1 October 2020 for directions before the Registrar at 9 a.m. on 29 March 2021; (6) Order 4 notwithstanding, list the proceedings for directions before the Registrar at 9 a.m. on 29 March 2021; (7) The costs of each party in respect of each motion are the parties' costs in the cause; (8) Reserve to each party liberty to apply on 14 days prior notice to the opposing party and to the Court. Catchwords: LAND LAW – caveats – where prior caveat lapsed - lodgment of caveat claiming same interest as previous caveat - lodgment with leave of court – where leave necessary to preserve interest of mortgagee CIVIL PROCEDURE – default judgment – default in filing defence – where defendant may have arguable defence – where defendant must file a defence CIVIL PROCEDURE – stay of proceedings - pending proceedings in other court - common issues in both proceedings – risk of inconsistent judgments – where proceedings in Federal Circuit Court are further developed Legislation Cited: Civil Procedure Act 2005 (NSW) s 67 Family Law Act 1975 (Cth) Property (Relationships) Act 1984 (NSW) ss 8, 14 Real Property Act 1900 (NSW) ss 74K, 74O, 74J Uniform Civil Procedure Rules 2005 (NSW) r Cases Cited: Arambasic v Veza (No 4) [2014] NSWSC 1109; 17 BPR 33,101 Category: Procedural and other rulings Parties: Jasmin White (Plaintiff) Steve Slobodan Arambasic (Defendant) Representation: Counsel: J White (Plaintiff in person) A Power (Defendant)