New South Wales Supreme Court CITATION : Chateau Constructions (Aust) Ltd v Zepinic [2009] NSWSC 1339 HEARING DATE(S) : 28 September 2009 JUDGMENT DATE : 28 September 2009 JURISDICTION : Equity JUDGMENT OF : Slattery J at 1 EX TEMPORE JUDGMENT DATE : 28 September 2009 DECISION : Caveat AE 479151B dated 2 February 2009 extended until further order of the Court CATCHWORDS : REAL PROPERTY - torrens title - caveats against dealings - extension of caveat sought - non appearance of defendants - evidence of charge sufficient to support caveat - extension of caveat granted LEGISLATION CITED : Real Property Act 1900 (NSW) s 74J, 74K CATEGORY : Principal judgment Plaintiff: Chateau Constructions (Aust) Limited PARTIES : First Defendant: Milla Zepinic Second Defendant: Vito Zepinic FILE NUMBER(S) : SC 4643/09 COUNSEL : Plaintiff: Mr B Ilkovski Defendants: No Appearance SOLICITORS : Plaintiff: Toomey Pegg Drevikovsky Lawyers Defendants: No Appearance IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION SLATTERY J MONDAY 28 SEPTEMBER 2009 4643/09 CHATEAU CONSTRUCTIONS (AUST) LIMITED v MILLA ZEPINIC & VITO ZEPINIC JUDGMENT 1 HIS HONOUR: These proceedings are a dispute between a builder, Chateau Constructions Pty Limited and owners of certain domestic premises in Turramurra, Doctor and Mrs Zepinic. 2 Chateau Constructions contracted with the Zepinics to do building work at their premises in Turramurra. The precise address of those premises will not be recorded in this judgment pursuant to the Court's policy of reducing the risk of identity theft through material published by the Court. The precise address of Zepinics is obtainable in the Court file. 3 Differences arose between the parties about the performance of the building contract, which led to litigation in the Consumer Trade and Tenancy Tribunal. The plaintiff, Chateau Constructions was successful before the CTTT. Chateau Constructions now seeks to take advantage of a charging provision in the building contract to secure the sum found to be due to it by the CTTT. Chateau Constructions has lodged a caveat over the Turramurra property. Today it seeks to extend that caveat under s 74K of the Real Property Act 1900. 4 More detailed relevant facts are the following. The building contract between the parties was made on 23 February 2006. The contract contains a charging provision in the following terms: "The owner [the Zepinics] charges the site [the Turramurra property] with the due payment to the builder [Chateau Constructions] of all monies that are or may become payable under this contract, to the extent a court or tribunal has made an order that the owner pays the money to the builder". 5 The dispute in the CTTT resulted in the Consumer Trader and Tenancy Tribunal making an order on 2 February 2009 that the Zepinics pay Chateau Constructions the sum of $370,847.35. This order is consequent upon reasons for judgment given by a C Paull, the senior member of that tribunal, on 18 December 2008. 6 The order made in the CTTT qualifies within the charging provision in the building contract as "an order that the Owner pays the money to the Builder". In the circumstances that have occurred therefore there is a reasonable basis to infer that there is a charge in favour of Chateau Constructions over the Turramurra property in respect of the monies, the subject of the CTTT order of 2 February 2009. 7 The caveat in these proceedings, number AE 479151B dated 2 February 2009, was the subject of a notice to caveator under s 74J of the Real Property Act of the proposed lapsing of the caveat. This notice was served on the solicitor for Chateau Constructions on 9 September 2009. The twenty-one day lapsing period provided for by s 74J(1) Real Property Act will expire this coming Wednesday, 30 September 2009. For this reason Chateau Constructions comes to Court today seeking extension of the caveat under s 74K(2) Real Property Act. 8 The defendants are not present today. Their names were called outside the Court at ten past eleven this morning, when there was no appearance on their behalf. Mr Loel, the solicitor with carriage of the matter on behalf of Chateau Constructions, gave evidence before me to indicate that he had served the summons, affidavits and orders in this matter in accordance with the order of the Court made on 22 September 2009. 9 To follow up that service, he telephoned Mr Roskov, the solicitor at the firm Hancock Alldis & Roskov, which firm acts for Dr and Mrs Zepinic in the building dispute between the parties. Mr Roskov has corresponded with Mr Loel on behalf of Dr and Mrs Zepinic. The telephone communications between Mr Loel and Mr Roskov confirm two important matters. The first is that Mr Roskov is still retained on behalf of Dr and Mrs Zepinic and there is no present indication that his instructions will be withdrawn. Secondly, Mr Roskov indicated to Mr Loel that he had instructions from his clients not to attend Court today and that he was aware of these proceedings being before the Court today. 10 In those circumstances, I will extend the caveat in accordance with the order sought in the summons today. I will extend the caveat until further order of the Court. I have indicated to the plaintiff that I am not yet prepared to make the declarations sought in order 2 of the summons, unless there is a further communication between Mr Loel and Mr Roskov indicating that I will proceed with that course if there is no appearance. I will now adjourn the matter so that those communications can take place. Upon resumption, if the procedural steps I have suggested are taken, the Court will be inclined to make the declaration as requested. Costs will be reserved. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.