Starling v Miller [2023] NSWSC 855

Supreme Court New South Wales

Medium Neutral Citation: Starling v Miller [2023] NSWSC 855 Hearing dates: 20 July 2023 Date of orders: 20 July 2023 Decision date: 20 July 2023 Jurisdiction: Equity - Duty List Before: Hammerschlag CJ in Eq Decision: (1) Pursuant to s 74O of the Real Property Act 1900 (NSW), the plaintiff has leave to lodge a further caveat on the title to the property in Folio Identifier 203/15376 in the following terms: ESTATE OR INTEREST CLAIMED Charge By virtue of: Orders of the Federal Circuit and Family Court of Australia Dated: 29/11/2021, 03/12/2021, 10/02/2022 Details Supporting The Claim: Pursuant to orders of the Federal Circuit and Family Court of Australia made on 3 December 2021 (File Number BRC4359/2019), the caveator is at liberty to lodge a caveat over the property to secure payment of the settlement sum of $1.5 million owed to the caveator by the registered proprietor pursuant to an Order of the Federal Circuit and Family Court of Australia made on 29 November 2021 and the registered proprietor is obliged to consent to the lodgement. (2) Upon the plaintiff, through counsel, having proffered the usual undertaking as to damages, the defendant is restrained, until further order, from procuring the issue of any lapsing notice with respect to the caveat in order (1) (if lodged). (3) The defendant is to pay 75% of the plaintiff's costs. (4) The Summons is otherwise dismissed. (5) These orders are to be entered forthwith. Catchwords: LAND LAW — caveat — Real Property Act 1900 (NSW) ss 74K, 74O — application by the plaintiff to extend the operation of a caveat lodged on the defendant's property — where matrimonial settlement orders made by the Federal Circuit and Family Court of Australia (the Family Court) awarded the property to the defendant and made provision for payment by her to the plaintiff of a settlement sum of $1.5 million to be raised by sale of the property if it was not paid by a particular date — where the Family Court made orders that the plaintiff be at liberty to lodge a caveat over the property and in the event that order was not sufficient to permit the lodgement of a caveat, the parties will do everything necessary to lodge a consent caveat — whether the orders give rise to a caveatable interest — HELD — the orders give rise to a caveatable interest — form of caveat lodged insupportable — caveat not extended but leave given to the plaintiff to lodge a caveat reflecting the caveatable interest found by the Court — injunction ordered restraining the defendant until further order from taking steps to procure the lapsing of the new caveat Legislation Cited: Real Property Act 1900 (NSW) Cases Cited: Coleman v Bone (1996) 9 BPR 16,235 Powell v Stone [2014] NSWSC 574 Troncone v Aliperti (1994) 6 BPR 13,291 Category: Principal judgment Parties: Darren Starling (Plaintiff) Lisa Miller (Defendant) Representation: Counsel: D Robertson (Plaintiff) A Elizabeth (Defendant)