Reported Decision : (2005) NSW ConvR 56-098 New South Wales Supreme Court CITATION : Makucha v Nothintoohard Pty Ltd [2004] NSWSC 1038 HEARING DATE(S) : 29 October; 4 November 2004 JUDGMENT DATE : 4 November 2004 JURISDICTION: Equity Division JUDGMENT OF : Young CJ in Eq DECISION : Proceedings must be dismissed with costs. CATCHWORDS : CONVEYANCING [136]- Torrens Act- Caveat- Whether properly addressed lapsing notice needs to be received by caveator- Real Property Act 1900, s 74N. LEGISLATION CITED : Real Property Act 1900, s 74N In re Drinkwater (1929) 46 WN (NSW) 202 CASES CITED : National Australia Bank v Dyer (1966) V Conv R 54-553 Re Ex parte Little (1958) 58 SR (NSW) 173 Paul Makucha (P) Nothintoohard Pty Limited (D1) PARTIES : Adam Shepard (D2) Ronald John Dean-Willcocks (D3) Registrar General of New South Wales (D4) FILE NUMBER(S) : SC 5683/04 Plaintiff in person COUNSEL : M J Stevens (D2 & 3) G Channell (S) (D4) Plaintiff in person SOLICITORS : Abbott Tout (D2 & 3) K C Hall Solicitor for Registrar General (D4) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION YOUNG CJ in EQ Thursday 4 November 2004 5683/04 – MAKUCHA v NOTHINTOOHARD PTY LIMITED JUDGMENT 1 HIS HONOUR: This is a summons issued by the plaintiff seeking a declaration that the notice to caveator of proposed lapsing of caveat has not been served in accordance with the provision of the Real Property Act. 2 The plaintiff has lodged caveats including caveat AA524962N, AA953716K and possibly a third caveat against the title of the defendant. The caveat states the nature of estate or interest as: "Equitable interest in the land as owner of the intellectual property relating to and attaching to the land as described in annexure A hereto". The annexure A says: "The intellectual property subsists in the know how and concept of a marketing scheme which utilises on a site an integrated means of marketing a product or service". 3 It then goes on to describe the intellectual property in more detail. The question as to how an equitable interest arises or the quantum of the equitable interest is not addressed. 4 The defendant sought from the Registrar General the issue of a lapsing notice under s 74J of the Real Property Act and the Registrar General issued the prescribed forms. Those forms had to be served in accordance with s 74N of the Real Property Act. Section 74N provides that where provision is made for the service on the caveator of a notice relating to the caveat lodged under Pt 7A of the Act, the notice is duly served if it is served: "(b) the notice is left at or sent by registered post to; (i) the address specified in the caveat ... ". 5 It would seem that a registered letter was addressed to the caveator at 62/1 Macquarie Street, Sydney. It would seem on the evidence before the court that that became registered post number RD17057667. It was delivered to the address and to a Ms Hyett, who is described in evidence as the concierge, who refused to accept it. 6 Mr Makucha, who appeared for himself, says that he never received it. He says that under s 76 of the Interpretation Act 1987, subs 1 (b), that here we have an Act which authorises a document to be served by post in Australia and that document is: "Unless evidence sufficient to raise doubt is adduced to the contrary, taken to have been effected on the fourth working day after the letter was posted". 7 In Re Ex parte Little (1958) 58 SR (NSW) 173 Hardie J, when dealing with the predecessor of the present section, s 72 (3) of the then Real Property Act, held that it was sufficient that the notice to the caveator be addressed in that way, and it was not necessary to show that the recipient actually received it. The responsibility of ensuring receipt of any such notice rested on the caveator. That case was followed in Victoria in National Australia Bank v Dyer (1996) V Conv R 54 -553 by Batt J. 8 These decisions have been referred to in both the leading books on the Real Property Act; see for instance Woodman and Nettle Torrens System in New South Wales note [74N.20] in update 10, and in the third edition of Butterworths Annotated Conveyancing and Real Property Act as against 74N. 9 The applicability of those sections has never been put in question, at least until today, and fall in with the general view that has been taken of caveats as long ago as In Re Drinkwater (1929) 46 WN (NSW) 202, that a caveator is responsible for giving a proper address to the Registrar General where notices can be served on him and if there is some falling down in the process, then the caveator is the person who suffers rather than the registered proprietor. 10 This view was assumed by the legislature when it added s 74N(3) allowing the caveator to change his address to be notified by notice to the Registrar General because without that the mere fact that a former solicitor or accountant was sent a registered letter would have been sufficient. 11 The evidence that I have, particularly the letter from Australia Post to the defendant's solicitors, suggests that the plaintiff gave a standing instruction not to accept mail. Mr Makucha strongly objects to me drawing any such inference, but Mr Ryckmans' affidavit is unanswered. 12 It is not, however, necessary to draw any such inference because the evidence clearly is that the provisions of s 74N were carried out by the sending of the registered letter and Hardie J's decision has stood for almost fifty years and been accepted by everyone. 3 Mr Makucha says, what about s 76 of the Interpretation Act? Without considering what s 76 (1)(b) actually means, where one has a specific piece of legislation and a general piece of legislation one does not use the general piece of legislation but complies with the specific piece of legislation. 14 Accordingly, the notice, in my view, following what Hardie J said, has been served in accordance with s 74N of the Act. Even if that were not so, I would have some doubt as to whether there was any utility in making the declaration sought by the plaintiff. 15 The result must be that the proceedings must be dismissed with costs. 16 The existing interlocutory orders cease to have effect from today. However, I stay that last mentioned order up until 11.59 pm on Wednesday 10 November 2004 in order to give Mr Makucha a chance to lodge an appeal and obtain a further stay from the Court of Appeal. ********************* Last Modified: 11/09/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.