Ida v Voldis Care Ltd [2024] NSWSC 1487

Supreme Court New South Wales

Medium Neutral Citation: Ida v Voldis Care Ltd [2024] NSWSC 1487 Hearing dates: 18 November 2024 Date of orders: 18 November 2024 Decision date: 18 November 2024 Jurisdiction: Equity - Duty List Before: Parker J Decision: See [22] Catchwords: LAND LAW — withdrawal of caveat under Real Property Act 1900, s 74MA — defendant lodged caveat on land claiming "equitable interest" on basis of an allegedly exchanged contract of sale with plaintiffs to purchase it — application by plaintiffs to have caveat withdrawn to enable imminent completion of sale of portions of the recently subdivided land to third parties — no contract ever exchanged between the parties — caveat has no substance — plaintiffs succeed Legislation Cited: Real Property Act 1900 (NSW) Cases Cited: Nil Texts Cited: Nil Category: Procedural rulings Parties: Ida Concentta (First Plaintiff) Giuseppe Lagana (Second Plaintiff) Nancy Mary Bagala (Third Plaintiff) Voldis Care Limited (Defendant) Representation: Counsel: N Simpson (Plaintiffs)

Solicitors: Emmaus Legal (Plaintiffs) File Number(s): 2024/425589

JUDGMENT- EX TEMPORE

Revised from transcript; issued on 21 November 2024 1. This is an application by the registered proprietor of land at Wetherill Park to have caveats lodged by the defendant over that land withdrawn. The application is made pursuant to the Real Property Act 1900, s 74MA. 2. The plaintiffs in the proceedings are the registered proprietors of the land. They hold the land as the executor of their late mother's estate. 3. The land in question was, until recently, contained in a single folio identifier. At some point before September 2021, the plaintiffs had a subdivision plan drawn up for the purpose of subdividing the land into nine separate lots. They then exchanged contracts for sale of at least three of those proposed lots on an off-the-plan basis. The plan of subdivision has recently been approved and, on 22 October, it was lodged with New South Wales Land Registry Services. The land is now recorded as nine separate lots in a newly registered deposited plan. 4. As is usual for off-the-plan contracts, the lodgement of the plan of subdivision is the trigger for the completion of the sales of the relevant lots. Completion has been fixed for this Friday, 22 November. The combined sale price for the three lots is $10.1 million. 5. The caveat which resulted in these proceedings was lodged by the defendant on 23 October, the day after the lodgement of the plan of subdivision. The plaintiffs' solicitors became aware of the caveat on 28 October 2024, when it was identified by surveyors who had been retained by the plaintiffs in connection with the sale. 6. The claim on which the caveat is based is stated in the following terms: THE CAVEATOR CLAIMS AN EQUITABLE INTEREST IN THE SUBJECT LAND PURSUANT TO THE CONTRACT EXCHANGED 14 JANUARY 2023. CONTRACT EXCHANGED BETWEEN EXECUTORS OF THE ESTATE OF SERAFINA IDA AND THE CAVEATOR AS PURCHASER PURSUANT TO SPECIAL CONDITION 40.1 & 40.2 (i-ii). 1. It is clear from the evidence before me that the date reference in the caveat should have been 14 January 2013 rather than 14 January 2023. In the period leading up to January 2013 there had in fact been negotiations between the plaintiffs and the defendant for the purchase of the property by the defendant. But the plaintiffs' position was that those negotiations never resulted in a concluded agreement for the sale of the property. 2. Ms Susan Dinkha, who is the solicitor for the plaintiffs on this application, also acted for them in the 2012 to 2013 negotiations. In her affidavit, she deposed that the parties never reached agreement and no final version of an agreed contract for sale was ever signed on behalf of the plaintiffs and exchanged. 3. The caveat had been lodged on the defendant's behalf by a registered subscriber to the PEXUS system named Spectrum Client Solutions ("Spectrum"). On 29 October, Ms Dinkha wrote to Spectrum denying that the defendant had any caveatable interest as alleged in the caveat and demanding for the withdrawal of the caveat by 5pm the following day. 4. Spectrum responded by referring the plaintiffs' solicitors to a Mr Richard Licardy, solicitor, on whose instructions Spectrum had apparently lodged the caveat. On 30 October, Ms Dinkha then wrote to Mr Licardy asking him to withdraw the caveat. 5. On 1 November Mr Licardy replied: We refer to your correspondence dated 30 October 2024, with regards to the above referenced parties and advise that the writer simply witnessed the signatured of Mr Merill Whitehead [a director of the defendant] to the Statutory Declaration contained in the Caveat form. We have advised Mr Whitehead that we are unable to act on either his behalf or that of [the defendant], should your clients commence litigation as stated in your correspondence. We are advised that Mr Whitehead will be acting on his own behalf in any proceedings commenced by your clients. 1. In their correspondence with Spectrum and with Mr Licardy, Ms Dinkha had indicated that, if the caveat was not withdrawn steps would be taken to have it lapse. But at this time the caveat had not been formally registered; it was under consideration by an examiner in the office of the Registrar General. That may have had something to do with the fact that the caveat had been lodged only very soon after the subdivision application had been lodged and at a time when that subdivision had not formally been reflected on the register. 2. Be that as it may, it was not until 5 November that the caveat was actually registered (against all nine of the lots). By then, there was insufficient time to issue a lapsing notice and have the caveat lapse before the scheduled date of completion of the sale of the three lots. 3. On 7 November, Ms Dinkha wrote directly to the defendant, as she had effectively been invited to do by Mr Licardy's letter of 1 November. Ms Dinkha's letter was sent to Mr Licardy's office and also to the address of the defendant shown on the caveat. This resulted in further correspondence with Mr Licardy. 4. Mr Licardy responded on 12 November, indicating that he was advising Mr Whitehead as a friend and was not, for health reasons, accepting any instructions to act on behalf of clients in litigious matters. He set out instructions he had received from Mr Whitehead asserting that, in January 2013, on behalf of the defendant, Mr Whitehead had exchanged contracts on the purchase of the land with Mr Giuseppe (Joe) Lagana, second plaintiff, on behalf of the plaintiffs, and had paid a deposit of $100 in accordance with a special condition of the contract. 5. Mr Licardy was then asked for a copy of the allegedly exchanged contract. He failed to provide it directly but wrote a letter to the Court on 13 November which attached a copy. 6. The copy document is the first page of a standard form contract for the sale of land (2005 edition) and a further eight pages of special conditions. It bears what is apparently Mr Whitehead's signature for the defendant as purchaser, in which he describes himself as "founder and director" of the defendant. Changes to the special conditions have also been initialled by Mr Whitehead. A contract date of 13 January 2013 has been inserted in handwriting, I assume by Mr Whitehead. The document however contains no signature by the plaintiffs as vendors. 7. When the matter came before me today for hearing, Mr Whitehead sought to appear on behalf of the defendant. I declined to give him the necessary leave. 8. Then, when it became clear that I intended to proceed to deal with the application, Mr Whitehead told me that there was no point to the proceedings and produced what he described as a signed withdrawal of caveat. I was told, however, by counsel for the plaintiffs that the withdrawal was signed only by Mr Whitehead and, according to a search of the defendant, there are in fact seven directors. On the face of it, therefore, Mr Whitehead had no authority to execute the withdrawal on his own and I therefore proceeded to hear the evidence which I have summarised above. 9. I am satisfied that the caveat has no substance. There is no positive evidence that negotiations actually resulted in a signed agreement. In that regard, it is relevant that the special conditions attached to the contract provided by Mr Whitehead contain a number of changes in favour of the defendant company as purchaser, including a reduction of the deposit from $550,000 to $1. The document bears all the hallmarks of a draft prepared for the purpose of negotiation which has been altered by Mr Whitehead to reflect the terms upon which he was prepared to have the defendant company purchase but which were never accepted by the plaintiffs. The evidence of Ms Dinkha squarely denies that any such contract was made and there is nothing to cast any doubt upon that evidence. 10. For these reasons, the plaintiffs are entitled to succeed in their application. 11. The orders of the court are: 1. Order pursuant to s 74MA of the Real Property Act 1900 that caveat AU521672 recorded on the title of the land at 1287 to 1299 The Horsley Drive, Wetherill Park (being the land contained in certificate of title Folio Identifier lots 1 to 9 in Deposited plan 1171624) be withdrawn by the defendant by 21 November 2024. 2. Order that the defendant pay the plaintiffs' costs of the proceedings. 3. Direct that these orders be taken out forthwith.