Mellish v Fetoza Pty Limited [2007] NSWSC 790

New South Wales Supreme Court

CITATION : Mellish v Fetoza Pty Limited [2007] NSWSC 790

HEARING DATE(S) : 30 May; 1 June 2007 JURISDICTION : Equity Division Duty List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 1 June 2007

DECISION : Leave granted to lodge further, more limited, caveat

CATCHWORDS : REAL PROPERTY – Torrens system – caveats against dealings – where caveat claims excessive interest – where tenant clearly has arguable caveatable interest of lesser extent – balance of convenience – where interest of tenant disclosed in contract for sale – where purchaser would be protected against notice

LEGISLATION CITED : (NSW) Real Property Act 1900 ss 42, 74F, 74O (NSW) Real Property Regulation 2003 cl 7

CASES CITED : Circuit Finance Pty Ltd v Crown & Gleeson Securities Pty Ltd [2005] NSWSC 997 Ocean View Group Holdings v Balaz [2006] NSWSC 1469

PARTIES : Kaye Lorraine Mellish (plaintiff) Fetoza Pty Limited (defendant)

FILE NUMBER(S) : SC 2940/07

COUNSEL : Mr M J Stevens (plaintiff) Mr M J Heath (defendant)

SOLICITORS : R & M Legal (plaintiff) BHM Lawyers (defendant)

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

BRERETON J

Friday, 1 June 2007

2940/07 Kaye Lorraine Mellish v Fetoza Pty Limited JUDGMENT (ex tempore) 1 HIS HONOUR: The plaintiff Kaye Lorraine Mellish, her husband Garry Mellish and her son-in-law Michael Mitchell, operate a large retail pet store in Nowra under the name "Parkview Pets", originally from premises at shop 1, 106 Kinghorne Street, Nowra, and now from premises which comprise a combination of that original shop and the adjoining shop 2. At one stage during 2004 to 2005, they also traded from an additional nearby shop, shop 4, but their occupancy of that shop came to an end in mid 2005.