Everbow Pty Ltd & Anor v Goodwin [2006] NSWSC 360

New South Wales Supreme Court

CITATION : Everbow Pty Ltd & Anor v Goodwin [2006] NSWSC 360

HEARING DATE(S) : 26/04/06 JUDGMENT OF : Gzell J

EX TEMPORE JUDGMENT DATE : 04/26/2006

DECISION : Notice of motion dismissed with costs.

CATCHWORDS : CONVEYANCING - Land Titles under the Torrens System - Caveats against Dealings - Notice of withdrawal of caveat handed over to be used at settlement of mortagee sale - Caveat to lapse before settlement - Application to extend - Whether any utility in such an order

LEGISLATION CITED : Real Property Act 1900

PARTIES : Everbow Pty Ltd and Laraby Management Services Pty Ltd - Plaintiffs Clark Goodwin - Defendant

FILE NUMBER(S) : SC 2411/06

COUNSEL : Mr S Coleman - Plaintiffs Ms N Obrart - Defendant

SOLICITORS : Owen Hodge Lawyers

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

GZELL J

WEDNESDAY 26 APRIL 2006

2411/06 EVERBOW PTY LTD & ANOR V CLARK GOODWIN EX TEMPORE JUDGMENT 1 Everbow Pty Ltd and Laraby Management Services Pty Ltd as trustees for the West Family Trust trading as Platinum Consulting Solutions, lodged a caveat over certain land. The registered proprietor of the land is Clark Goodwin. 2 A mortgagee sale is to take place and, preparatory to the settlement of that sale, Everbow and Laraby, together with all other caveators with respect to the land, have executed notices of withdrawal of caveat and handed them over to be utilised upon settlement of the mortgagee sale. 3 Everbow and Laraby's caveat is due to lapse this afternoon. Indeed, in less than an hour. They seek an order that the operation of the caveat be extended under s 74K of the Real Property Act 1900, under which the court has a discretion to extend the operation of a caveat. 4 This is a peculiar circumstance in that any extension of the caveat will be followed by its extinguishment so soon as the notice of withdrawal is utilised. In those circumstances, it seems to me that there is little utility in the court extending the caveat that is intended to be extinguished. 5 It was submitted that there might be some affectation upon the priority of interests of Everbow and Laraby if their caveat lapses rather than being extinguished under exercise of the notice of withdrawal. 6 I do not see that argument established on the material before the court and, in the absence of some utility, the court, in the exercise of its discretion, should refuse to extend the caveat. I therefore dismiss the notice of motion. I order the plaintiffs to pay the defendant's costs. I stand the matter over before the Registrar at 9.30 am on Friday 28 April 2006. **********