Malouf v O'Donohoe [2001] NSWSC 335

New South Wales Supreme Court

CITATION : Malouf v O'Donohoe [2001] NSWSC 335 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2372/01 HEARING DATE(S) : 27/04/01 JUDGMENT DATE : 27 April 2001

PARTIES : Anthony Mark Malouf (P) Terence Markham O'Donohoe (D) JUDGMENT OF : Young CJ in Eq

COUNSEL : R W Tregenza (P) SOLICITORS : Messrs Malouf (P) CATCHWORDS : CONVEYANCING [189]- Caveats- Applications for extension- Not to be made ex parte- Not to be left to last moment. LEGISLATION CITED : Real Property Act 1900, ss 74K, 74 O CASES CITED : Wonderland Business Park Pty Ltd v Hartford Lane Pty Ltd [2001] NSWSC 86 DECISION : Order made.

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

YOUNG CJ in Eq

FRIDAY 27 APRIL 2001

2372/01 - MALOUF v O'DONOHOE

JUDGMENT

1 HIS HONOUR: This is an ex parte application made under section 74K of the Real Property Act 1900 to extend a caveat. The statute requires that no ex parte application to extend a caveat is to be entertained unless the Court has dispensed with service. 2 At least since the decision of the then Chief Judge in Equity in Wonderland Business Park Pty Ltd v Hartford Lane Pty Ltd [2001] NSWSC 86 noted in 75 ALJ 226, the Court almost never makes an order of this nature ex parte. It is extremely difficult to see any justification for dispensing with service in cases where lawyers have left their application for dispensing with service to the last day and no other factor is present. Indeed it is difficult to see when the Court would ever be justified in dispensing with service in a case where there was an identifiable caveator in the jurisdiction. 3 However, as the practice may have been a little lax over the last few years I will on this occasion make an order under s 74 O allowing a fresh caveat to be lodged in identical terms to the current caveat, on condition that that caveat will be withdrawn next Wednesday, 2 May 2001, unless the Court extends the period. 4 I am doing this for two reasons; first, because there appears to have been genuine inadvertence in the instant case, rather than it being one where the application was deliberately left to the last day; secondly, there would not appear to be an impending contrary dealing and it is only fair that a short time be allowed for the profession to come to grips with the current practice.