Ruxan Pty Ltd v Peachme Pty Ltd [2004] NSWSC 1221

New South Wales Supreme Court

CITATION : Ruxan Pty Ltd v Peachme Pty Ltd [2004] NSWSC 1221 HEARING DATE(S) : 13 December 2004 JUDGMENT DATE : 13 December 2004 JURISDICTION: Equity JUDGMENT OF : Campbell J DECISION : Caveat ordered to be withdrawn

CATCHWORDS : CONVEYANCING - LAND TITLES UNDER THE TORRENS SYSTEM - caveats against dealings - order that caveat be withdrawn - applicable principles LEGISLATION CITED : Corporations Act 2001 (Cth) Real Property Act 1900 70 Pitt Street Sydney v McGurk [2004] NSWSC 413 CASES CITED : Gay v Gooden (1989) NSW ConvR 55-445 Kerrabee Park Pty Ltd v Daley [1978] 2 NSWLR 222 Martyn v Glennan [1979] 2 NSWLR 234 PARTIES : Ruxan Pty Ltd - Plaintiff Peachme Pty Ltd - Defendant FILE NUMBER(S) : SC 6628/04 COUNSEL : K Rees - Plaintiff No appearance SOLICITORS : Henry Davis York - Plaintiff No appearance

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY JUDGE LIST

CAMPBELL J

MONDAY 13 DECEMBER 2004

6628/04 RUXAN PTY LTD v PEACHME PTY LTD JUDGMENT – Ex Tempore 1 HIS HONOUR: This is an application under section 74MA of the Real Property Act 1900 for an order that a caveat on two lots of land located at 69 The Mall, Bankstown, be withdrawn. The plaintiff is presently the registered proprietor of those lots of land. On 27 November 2003 the plaintiff entered into a contract to sell the land to the defendant, for a price of $1.3 million. The contract stated the defendant's address as being 3/12 Old Town Plaza, Bankstown. 2 A notice to complete was served by the plaintiff on the defendant on 30 March 2004, which was extended by agreement. A further notice to complete was served by the plaintiff on the defendant on 17 May 2004, but withdrawn. A third notice to complete dated 19 May 2004 was served, which appointed 3 June 2004 for settlement. Settlement did not occur on 3 June 2004. In consequence, on 4 June 2004 the plaintiff served a notice of termination of the contract. 3 The plaintiff has now entered into a contract to sell the land to another party. That contract was due to settle on 1 December 2004. That settlement did not proceed when it was discovered that a caveat had been lodged on the title. It is a caveat lodged by the defendant, claiming an equitable interest in purchasing the property pursuant to the contract for sale dated 27 November 2003. The facts by virtue of which that interest is claimed are stated in the caveat as being: "The caveator entered into a contract to purchase the land and claims that contract has not been validly terminated and the caveator claims it is entitled to purchase the land under the terms of the contract dated 27 November 2003."