Barkworth Olive Groves v De Napoli [2010] NSWSC 1416

New South Wales Supreme Court

CITATION : Barkworth Olive Groves v De Napoli [2010] NSWSC 1416

HEARING DATE(S) : 30 November 2010 JUDGMENT OF : Ball J

EX TEMPORE JUDGMENT DATE : 30 November 2010

DECISION : 1. Order pursuant to section 74MA of the Real Property Act 1900 that on or before 2.00 pm on 30 November 2010 the defendant withdraw caveat number AF898487C over the plaintiff's land. 2. Order that the defendant, his servants and agents be restrained from lodging any caveat in respect of the land or any part thereof based upon the same grounds set out in caveat number AF898487C or claiming an interest to the same effect as the interest therein claimed.

CATCHWORDS : REAL PROPERTY – caveats – application pursuant to s 74MA of the Real Property Act that defendant withdraw caveat over property owned by plaintiff – where plaintiff has been served with notice to complete in relation to sale of property – caveat not in valid form

LEGISLATION CITED : Real Property Act 1900 (NSW)

CATEGORY : Procedural and other rulings

PARTIES : Barkworth Olive Groves Limited ACN 076 441 551 (Plaintiff) Antonio De Napoli (Defendant)

FILE NUMBER(S) : SC 2010/394678

COUNSEL : B J Miller (Solicitor for the Plaintiff) No Appearance (Defendant)

SOLICITORS : Garland Hawthorn Brahe (Plaintiff) No Appearance (Defendant)

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BALL J

30 NOVEMBER 2010

2010/394678 BARKWORTH OLIVE GROVES LIMITED v ANTONIO DE NAPOLI EX TEMPORE JUDGMENT 1 This is an application pursuant to s 74MA of the Real Property Act 1900 that the defendant withdraw a caveat that he has lodged over property belonging to the plaintiff which is situated at Twin Waters. The plaintiff has entered into a contract for sale of the property. Settlement was originally due to occur on 30 July 2010. However, the purchaser failed to settle at that time. The plaintiff served a notice to complete and settlement of the sale was set for 24 November 2010. Shortly before settlement, the defendant lodged a caveat in respect of the property. 2 It appears that the address given by the defendant on the caveat is not his real address because, although the level of the building that is given as part of the address exists, it is not possible to get access to that level and it appears that that level is vacant. The nature of the estate or interest in the land claimed in the caveat is expressed in these terms: