EJS Developments Pty Ltd v Dunmore Street Pty Ltd [2021] NSWSC 351

Supreme Court New South Wales

Medium Neutral Citation: EJS Developments Pty Ltd v Dunmore Street Pty Ltd [2021] NSWSC 351 Hearing dates: 30 and 31 March 2021 Date of orders: 31 March 2021 Decision date: 08 April 2021 Jurisdiction: Equity - Duty List Before: Kunc J Decision: Notice of motion to extend caveat dismissed Catchwords: LAND LAW — Caveats — Extension of operation of caveat — Serious question to be tried — No issue of principle Cases Cited: Costa and Duppe Properties Pty Ltd v Duppe [1986] VR 90 Category: Procedural rulings Parties: EJS Developments Pty Ltd (Plaintiff) Dunmore Street Pty Ltd (Defendant) Representation: Counsel:

B Leybourne (Solicitor) (Plaintiff) C Bolger (Defendant)

Solicitors:

Australian Legal and Migration Services (Plaintiff) Sanford Legal (Defendant) File Number(s): 2021/76673 Publication restriction: No

Judgment

Summary 1. The plaintiff, EJS Developments Pty Ltd (EJS), in its capacity as trustee for the Eli Sukkar Family Trust holds five units (equivalent to 23.18%) in the Dunmore Street Unit Trust (the Trust). The defendant, Dunmore Street Pty Ltd (Dunmore St) is the trustee of the Trust, which was established by a deed made on 15 May 2007 (the Deed). The purpose of the Trust was to build a multi-unit residential development in Wentworthville (the Development). 2. The Development has been completed and the Trust is in the process of being wound up by distribution to the unitholders. EJS disputes the distribution proposed to be made to it. It lodged a caveat over certain lots in the Development. Upon receiving a lapsing notice issued by Dunmore St, EJS applied in the Duty List for an order to extend its caveat. 3. I heard the application on 30 and 31 March 2021, at the conclusion of which the Court made these orders: "1. The plaintiff's notice of motion filed 23 March 2021 and prayer 2 of the plaintiff's summons filed 23 March 2021 are dismissed. 2. The plaintiff is to pay the defendant's costs of the plaintiff's notice of motion filed 23 March 2021. 3. The proceedings to continue by pleadings. 4. The plaintiff is to file and serve its statement of claim by 30 April 2021. 5. The proceedings are listed for further directions before the Registrar on 12 May 2021." 1. In summary, there were two reasons for these orders. First, EJS was unable to identify a serious question to be tried in relation to any final relief to which it might be entitled. Second, and closely related to the first reason, EJS had unacceptably delayed attempting to identify any legal basis for final relief. 2. Mr B Leybourne, Solicitor, appeared for EJS. Mr C Bolger of Counsel appeared for Dunmore St.