Kollias v Monzo Pty Ltd [2004] NSWSC 334

New South Wales Supreme Court

CITATION : Kollias v Monzo Pty Ltd [2004] NSWSC 334 HEARING DATE(S) : 16 April, 2004 JUDGMENT DATE : 16 April 2004 JURISDICTION: Equity Division JUDGMENT OF : Palmer J DECISION : Declaration that Plaintiff has no caveatable interest.

CATCHWORDS : REAL PROPERTY - CAVEATS - whether work done on premises by tenant gave rise to a caveatable interest. PARTIES : Golfinos Kollias - Plaintiff Monzo Pty Limited - Defendant FILE NUMBER(S) : SC 3725/02 COUNSEL : T. Orlizki (Sol) - Plaintiff A. Juliano - Defendant SOLICITORS : Norman Waterhouse - Plaintiff Nescis Lawyers - Defendant

Ex tempore

Motions

1 From the court file it appears that these proceedings were dismissed on 28 November 2002 under Pt 13 r5A for want of an appearance by either party when the matter was listed for directions. It seems that non-appearance by both parties was due to inadvertence. In those circumstances, it is appropriate, in my view, to exercise the power of the Court under Pt 40 r9(3) to set aside the order dismissing the proceedings which was made on the 28 November 2002. 2 Accordingly, the Notices of Motion filed on behalf of the Defendant may be entertained in these proceedings. 3 There is a Motion filed by the Defendant on 22 March 2004 returnable on 23 April 2004 wherein the Defendant seeks a declaration that the Plaintiff does not have a caveatable interest in the subject property and, further, seeks an order that that caveat be removed. There is a further Notice of Motion filed on 1 April 2004 seeking that the Notice of Motion returnable on 23 April be heard instead today. 4 Mr Orlizki appears for the Plaintiff/Respondent to the Motions. He very sensibly and pragmatically says that there would be no real advantage to his client in having the matter adjourned to a later date for hearing because of the risk of substantial damages to which his client may be exposed if it is held that he has no caveatable interest. Mr Orlizki is therefore prepared to proceed with the argument of the matter today. 5 Accordingly, I will make the order sought in the Notice of Motion filed on 1 April 2004, that is, I will take the matter out of the list for 23 April 2004 and I will hear the substantive application today.