New South Wales Supreme Court CITATION : Bidmonta Pty Ltd v Gerardo D'Angolo & anor [2009] NSWSC 438 HEARING DATE(S) : 29 April 2009 JURISDICTION : Equity Division Duty Judge List JUDGMENT OF : Brereton J EX TEMPORE JUDGMENT DATE : 29 April 2009 DECISION : Caveat extended ex parte to time when summons made returnable CATCHWORDS : REAL PROPERTY – Caveats – ex parte application for extension of caveat – circumstances in which order can be made ex parte (NSW) Contracts Review Act 1980 LEGISLATION CITED : (NSW) Real Property Act 1900, s 74K(4) (NSW) Uniform Civil Procedure Rules 2005, r 25.2 CATEGORY : Procedural and other rulings Bidmonta Pty Ltd (plaintiff) PARTIES : Gerardo D'Angolo (first defendant) Caterina D'Angolo (second defendant) FILE NUMBER(S) : SC 2569/09 COUNSEL : Mr J Darvall (plaintiff) SOLICITORS : Brett Scott (plaintiff) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY JUDGE LIST BRERETON J Wednesday 29 April 2009 2569/09 Bidmonta Pty Ltd v Gerardo D'Angolo & anor JUDGMENT (ex tempore) 1 HIS HONOUR: This is an application, under UCPR, r 25.2, made ex parte before the commencement of proceedings, for an order extending the operation of a caveat under (NSW) Real Property Act 1900, s 74K(4). Normally, it would be unnecessary to make any observations in connection with an application for an abridgement of time for service in respect of a summons for such relief. However, on this occasion the order is sought ex parte, in circumstances where the caveat will otherwise lapse this afternoon. 2 The evidence, so far as it goes, sufficiently establishes for the rudimentary purposes of an application of this kind that the caveat may have substance, although I reserve for further consideration whether that conclusion will sustain examination on an interlocutory let alone a final, hearing. The difficulty is that s 74K(3) provides that, unless the Supreme Court has made an order dispensing with service, it may not hear an application under s 74K for an order extending the operation of the caveat, unless satisfied that all interested parties have been served with copies of the application before the hearing. The present application being made ex parte, the registered proprietor and applicant for the lapsing notice has not been served with a copy of the application. 3 So far as the evidence goes, it establishes that the applicant caveator did not become aware of service of the lapsing notice until yesterday, 28 April 2009. There is evidence that the application for preparation of the lapsing notice in the Land Titles Office has been annotated with a date of service of the lapsing notice on the caveator of 8 April, so that if its operation is to be extended, a court order must be lodged by 29 April – that is to say, today. If, as the evidence presently appears to show, the plaintiff only became aware of the lapsing notice yesterday, then it may be unreasonable to expect that it could have served its application before bringing it to the Court today. Moreover, the applicant's solicitor has spoken to a solicitor acting for the proposed defendants in proceedings in the Common Law Division – in which the defendants/registered proprietors seek to have the subject mortgage set aside under the (NSW) Contracts Review Act 1980 – and (unsuccessfully) sought agreement to the extension of the caveat for a short period. 4 Although s 74K provides that, unless the Court makes an order dispensing with service, it may not hear an application under s 74K(1) unless satisfied that there has been service of the application, subsection (4) somewhat inconsistently provides that an order under sub-section (2) may be made ex parte or otherwise. It seems to me that the hearing envisaged by s 74K(3) is the substantive hearing of the application for an order extending the operation of the caveat, and that s 74K(4) contemplates that an order may initially be made ex parte where appropriate, notwithstanding the requirement for service of the application before the substantive hearing. What s 74K(3) does is to prohibit the substantive hearing of an application for an extension of the caveat without notice, unless an order dispensing with service has been made. The present application is made before commencing proceedings, and in my view s 74K(3) was not intended to prevent the Court making an ex parte order under 74K(4) in those circumstances. 5 My orders are: (1) Upon the undertaking of Tristan Murray to pay the appropriate filing fees, grant leave to the plaintiff to file a summons in the form of the draft initialled by me, dated this day and placed with the papers, but subject to adding to it a claim for declaratory and/or other final relief. (2) Direct that the summons be returnable on Friday 1 May 2009 at 10am before the Duty Judge. (3) Abridge time for service of the summons as follows: (a) On the defendants' solicitor John R D Mattia & Co to 10am Thursday 30 April 2009. (b) On the defendants personally to close of business on 30 April 2009. (4) In respect of service on the defendants' solicitor the summons shall be sufficiently served by transmission of a facsimile of a sealed copy thereof together with a sealed copy of this order addressed to those solicitors on facsimile number 4731 6001. (5) Upon the plaintiff by its counsel giving to the Court the usual undertaking as to damages, order that the operation of caveat AD922523W be extended up to and including 1 May 2009. (6) Direct that these orders be entered forthwith. ********** 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.