Thomas v McKean [2006] NSWSC 1207

New South Wales Supreme Court

CITATION : Thomas v McKean [2006] NSWSC 1207

HEARING DATE(S) : 27 October 2006 JURISDICTION : Equity Division Duty List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 10/27/2006

DECISION : Summons for leave to lodge further caveat dismissed with costs.

CATCHWORDS : REAL PROPERTY – Torrens Title – Caveats – application for leave to lodge further caveat – necessary for all co-owners having interest which would be affected by caveat to be joined.

LEGISLATION CITED : Real Property Act 1900 (NSW), s 74O

PARTIES : Graham Russell Thomas (plaintiff) Elena Ann McKean (defendant)

FILE NUMBER(S) : SC 5327/06

COUNSEL : Mr C R de Robillard (plaintiff) Mr R E Quickenden (defendant)

SOLICITORS : Nash Allen Williams & Wotton (defendant)

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

BRERETON J

Friday 27 October 2006

5327/06 Thomas v McKean JUDGMENT (Ex tempore) 1 HIS HONOUR: This is an application for leave to lodge a further caveat pursuant to Real Property Act 1900 (NSW), s 74O, an earlier caveat lodged by the plaintiff in respect of the subject land having lapsed as a result of service of a lapsing notice issued at the request of the defendant, who was one of two registered proprietors. The other registered proprietor, who has not been joined as a defendant but who holds as tenant in common in equal shares with the defendant, is the son of the plaintiff.

2 As it seems to me, the first fundamental problem with these proceedings is, that although leave is sought to lodge a caveat which affects land of which two co-owners are the registered proprietors and the interest claimed in the caveat affects that of both registered proprietors, one registered proprietor – whose interest is obviously affected, has not been joined as a defendant. That is sufficient reason for holding that it is impossible to make the order sought in these proceedings, as presently constituted.