Guardian Loans Pty Ltd v Papadopoulos [2006] NSWSC 479

New South Wales Supreme Court

CITATION : Guardian Loans Pty Ltd v Papadopoulos [2006] NSWSC 479

HEARING DATE(S) : 19 May 2006

JUDGMENT DATE : 19 May 2006

JURISDICTION : Equity

JUDGMENT OF : Hamilton J

DECISION : Caveat extended for short period although notice of hearing not given to registered proprietors.

CATCHWORDS : CONVEYANCING [191] - Land titles under the Torrens system - Caveats against dealing - Practice - Order extending caveat – Notice of hearing not given to registered proprietors – Dispensing with service – Circumstances in which order made.

LEGISLATION CITED : Real Property Act 1900 s74K(3)

Guardian Loans Pty Ltd (P) PARTIES : Konstantinos Papadopoulos (D1) Adriana Papadopoulos (D2) Grenfell Securities Pty Limited (D3)

FILE NUMBER(S) : SC 2784/06

COUNSEL : G A Sirtes (P) No appearance (Ds)

SOLICITORS : Davidsons (P) No appearance (Ds)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

FRIDAY, 19 MAY 2006

2784/06 GUARDIAN LOANS PTY LTD v KONSTANTINOS PAPADOPOULOS & ORS

JUDGMENT 1 HIS HONOUR: This Friday afternoon Mr Sirtes, of counsel for the plaintiff, applies for the extension till next Wednesday of a caveat which otherwise may expire on Monday. He immediately draws to my attention a difficulty. The summons has been brought to the attention of solicitors who his solicitors believed acted for the registered proprietors, who are the defendants. It has only within the last couple of hours been discovered that those solicitors do not act for the registered proprietors, but for a second mortgagee of the premises. 2 The misapprehension arose from the form of a letter from those solicitors, McLachlan Chilton, sent on 27 April 2006 and which is annexed to the principal affidavit in the proceedings. The plaintiff's solicitors understood from that letter that McLachlan Chilton acted for the registered proprietors and it is very easy to see upon looking at the letter why they did so. But it is now clear they act for the second mortgagee, Grenfell Security Pty Ltd. It does appear in the lapsing notice that it is the second mortgagee rather than the registered proprietors who were the applicant for lapsing, but the relevant information is buried in the text of the notice and does not spring to the eye. 3 There is a difficulty that arises from the provisions of s 74K(3) of the Real Property Act 1900, which prevents any hearing of an application to extend a caveat if all interested parties do not have notice, unless the Court has made an order dispensing with service. The cases make plain that this is something that this Court is loath to do. 4 It is possible that I could stand the matter over till Monday with a direction that notice be given by then to the registered proprietors. It is, however, already well into Friday afternoon and this would produce a situation of rush, which would be difficult for everyone concerned. 5 The manner in which the problem has arisen is quite unusual and I do not think I will do any violence to the Court's usual policy in relation to s 74K(3) if I grant a limited dispensation in this case. I think it is better to give everyone the opportunity of dealing with the matter in an orderly way on Wednesday rather than creating an over-weekend crisis. 6 In the circumstances the orders that I make are as follows: