The Uniting Church (NSW) Trust Association v Hill [2005] NSWSC 665

New South Wales Supreme Court

CITATION : The Uniting Church (NSW) Trust Association v Hill [2005] NSWSC 665

HEARING DATE(S) : 5 July 2005

JUDGMENT DATE : 5 July 2005

JURISDICTION : Equity

JUDGMENT OF : Campbell J

DECISION : Caveat ordered to be removed.

CATCHWORDS : REAL PROPERTY - land under the Real Property Act 1900 - caveats against dealings - order for removal of caveat - caveator served at address for service nominated in caveat but does not appear

LEGISLATION CITED : Real Property Act 1900

70 Pitt Street Sydney v McGurk [2004] NSWSC 413 Gay v Gooden (1989) NSW ConvR 55-445 CASES CITED : Kerabee Park Pty Limited v Daley [1978] 2 NSWLR 222 Martyn v Glennan [1979] 2 NSWLR 234 Ruxan Pty Limited v Peachme Pty Limited [2004] NSWSC 1221

The Uniting Church (NSW) Trust Association Limited - Plaintiff PARTIES : Geoffrey William Hill - Defendant

FILE NUMBER(S) : SC 3784/05

R Weber SC; DL Warren - Plaintiff COUNSEL : No Appearance - Defendant

Slade Manwaring - Plaintiff SOLICITORS : No Appearance - Defendant

LOWER COURT JURISDICTION :

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

CAMPBELL J

TUESDAY 5 JULY 2005

3784/05 THE UNITING CHURCH (NSW) TRUST ASSOCIATION LIMITED v GEOFFREY WILLIAM HILL JUDGMENT – Ex Tempore (On application for removal of caveat) 1 HIS HONOUR: This is an application under section 74MA of the Real Property Act 1900 for removal of a caveat. The plaintiff is the mortgagee in possession of Real Property Act land located at 8 Gap Road, Watsons Bay. 2 The plaintiff has had a registered mortgage over that land since 24 September 1999. It has obtained possession of the land pursuant to a court order and entered into a contract for sale of the land in March 2005. Various caveats have resulted in settlement of that contract being delayed. 3 On 28 June 2005 the caveat the subject of this application was lodged. The caveator was stated to be Geoffrey William Hill of 705/2 Point Road, Darling Point. The address for service of notices to the caveator, nominated in the caveat, was c/- Peter White, Solicitors, 5 Bay Street, Double Bay 2028. 4 The interest claimed by the caveat was "proprietary interest". The space in the form to state by virtue of what instrument the interest arose was left blank. The space in the form which makes provision for stating by virtue of what facts the claimed interest arose was filled out by saying "interest granted". 5 A letter requiring removal of the caveat was sought to be delivered to the caveator at both the address he gave for himself in the caveat, and also at the address for service. At the address which the caveator gave for himself, the process server spoke to a female person on an intercom and, when asked for Mr Hill, was told "He isn't here. He lives in Queensland." The intercom then disconnected and subsequent attempts by the process server to make contact on the intercom again were unsuccessful. 6 Service was successfully made of that letter of demand at the address for Peter D White & Co, Solicitors. Mr White said to the process server, "I don't know if I'm working for them anymore, I haven't seen them for years." He said he did not know how to contact the person named as the caveator. Nonetheless, that letter of demand was left at the premises. 7 The present proceedings were begun on 1 July 2005, when a summons was filed in Court before White J. His Honour ordered under section 74M that service of the process in these proceedings could be effected at the address of Peter D White & Co, Solicitors. Today was nominated as the return date of the summons. 8 Service of the process has duly been effected at the office of Peter D White & Co, Solicitors. 9 At the hearing today, there was no appearance for the caveator. 10 Whether a caveat should be ordered to be removed depends upon, at the time the Court comes to consider the question, whether an interlocutory injunction would be granted to protect the interests claimed in the caveat: Kerabee Park Pty Limited v Daley [1978] 2 NSWLR 222; Martyn v Glennan [1979] 2 NSWLR 234; Gay v Gooden (1989) NSW ConvR 55-445; 70 Pitt Street Sydney v McGurk [2004] NSWSC 413 at [15], Ruxan Pty Limited v Peachme Pty Limited [2004] NSWSC 1221 at 9. 11 In deciding whether the interlocutory injunction should be granted the onus is on the caveator to establish an appropriate case for the granting of such an order. 12 In the present case the caveator has not appeared to defend his caveat. The evidence which has been put on by the plaintiff establishes that this is the fourth in a series of caveats which have delayed settlement, the previous ones of which have all expired pursuant to lapsing notices. 13 The mortgage which the plaintiff has over the land is one which will completely exhaust the proceeds of sale, and there is evidence that, at the time of acquisition of that mortgage, the plaintiff had no notice of any prior or competing interest in anyone. 14 This evidence which the plaintiff has put on is strictly more than is needed, in circumstances where the defendant has not even attempted to discharge his onus of proof. It is appropriate to order the caveat to be removed. 15 As well, I should say, that attempts by people to delay settlement by the lodgement of a caveat which, on its face, is grossly deficient and in circumstances where the lodger of the caveat then makes himself un-contactable at the address nominated for service of notices in the caveat, are not ones where the Court will spend a lot of time in requiring steps to be taken for the caveator to be in some other fashion searched out. 16 I make orders in accordance with the short minutes of order which I initial and date today's date and shall place with the papers. 17 I direct that service of these orders may be effected upon the defendant by delivery to Peter D White & Co, Solicitors, 5 Bay Street, Double Bay. 18 These orders may be entered forthwith. **********