Gippsreal Ltd v Paul Vincent Hanna [2009] NSWSC 169

New South Wales Supreme Court

CITATION : Gippsreal Ltd v Paul Vincent Hanna [2009] NSWSC 169

HEARING DATE(S) : 23 February 2009 JURISDICTION : Equity Division Duty Judge List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 23 February 2009

DECISION : Order that caveat be withdrawn

CATCHWORDS : REAL PROPERTY – Caveats – Removal – where resisted by Registered Proprietor – whether Registered Proprietor entitled to resist removal on application of mortgagee, consented to by caveator – remedies for sale by mortgagee at alleged undervalue

CATEGORY : Procedural and other rulings

Perpetual Trustee Company Ltd (applicant) PARTIES : Gippsreal Ltd (plaintiff) Paul Vincent Hanna (defendant)

FILE NUMBER(S) : SC 3038/08

Ms A McManus (applicant) COUNSEL : Mr S Agosta (plaintiff) Mr Hanna (defendant) (in person)

SOLICITORS : Deacons Lawyers (applicant) Leonard Legal (plaintiff)

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

BRERETON J

Monday 23 February 2009

3038/08 Gippsreal Limited v Paul Vincent Hanna

JUDGMENT (ex tempore)

1 HIS HONOUR: By Notice of Motion filed on 20 February 2009, which is returnable today pursuant to an abridgement for time for service apparently granted by the Registrar, the applicant Perpetual Trustee Company Limited seeks an order discharging an order made on 27 August 2008 on the application of the plaintiff Gippsreal Ltd extending the operation of Caveat AD 863805, which Gippsreal has lodged in respect of land at 9 Kimberley Drive, Bowral, known as Forest Ridge, of which the defendant Paul Vincent Hanna is the registered proprietor. Perpetual seeks the discharge of that order and removal of the caveat in circumstances where it, as mortgagee pursuant to a mortgage registered in priority to the caveat, has exercised its power of sale of the land as long ago as October of last year, with settlement scheduled to take place on or before 3 March 2009. Gippsreal has provided a withdrawal of caveat, but the Land Titles Office has required evidence that the Court's orders extending the operation of the caveat have been "satisfied " and Gippsreal, though it does not oppose the relief sought by Perpetual, has not been prepared without the sanction of a court order to do everything that the Land Titles Office has indicated it would require in that respect.