C & M Papapetros Pty Ltd v Patty Panayiotou [2011] NSWSC 1295

Supreme Court New South Wales

Medium Neutral Citation: C & M Papapetros Pty Ltd v Patty Panayiotou [2011] NSWSC 1295 Hearing dates: Friday, 7 October 2011 Decision date: 07 October 2011 Jurisdiction: Equity Division - Duty List Before: Brereton J Decision: Summons dismissed. Defendant to pay plaintiff's costs. Catchwords: COSTS - Caveats - defendant lodges insupportable caveat - caveat removed voluntarily by defendant after plaintiff initiates proceedings - defendant puts plaintiff to expense of coming to court - defendant must pay costs. Category: Principal judgment Parties: C & M Papapetros Pty Ltd (plaintiff) Patty Panayiotou (defendant) Representation: Counsel: Mr J Johnson (plaintiff) Mr J Stephenson (defendant) Solicitors: Andresakis & Associates (plaintiff) Simpson & Partners Solicitors Pty Ltd (defendant) File Number(s): 2011/318534

Judgment (ex tempore) 1HIS HONOUR: Yesterday I was approached ex parte with a summons for removal of a caveat. I granted leave to file the summons and made it returnable at 2pm this afternoon, and abridged time for service to yesterday evening. In the meantime, the caveat has been voluntarily removed by the defendant. It is common ground that the caveat does not disclose a caveatable interest. The plaintiff seeks an order that the summons be dismissed, the caveat having been removed, but that the defendant pay the plaintiff's costs. 2The starting point is the caveat does not begin to disclose a caveatable interest. The caveat form bears the warning: Care should be exercised in completing a caveat form. An insupportable caveat may be challenged in the Supreme Court. Damages may be awarded for lodging a caveat without justification and penalties could be imposed for a breach of the Oaths Act and the Real Property Act. 3The plaintiff had many months ago exchanged contracts for sale of the subject property, which contracts are due to complete on Monday 10 October. The plaintiff did not discover the caveat, which had been lodged after the exchange of contracts, until on or about 4 October. The plaintiff thereupon requested the defendant to withdraw the caveat immediately. The defendant stated that this did not allow her enough time. The plaintiff afforded the defendant a short extension until 5pm on Wednesday 5 October to do so. The defendant was unable to open that communication electronically at first, and did not obtain legal advice until the afternoon of 6 October, contemporaneously with the plaintiff making its application to the court. 4While one has some sympathy for the defendant's position, the bottom line is that the defendant lodged an insupportable caveat and, while the defendant has not acted unreasonably in withdrawing that caveat with reasonable promptitude by the unsupportable caveat in the first place, she has put the plaintiff to the necessity and costs of approaching the court. I have taken into account and treated as fact everything Mr Jobson, appearing on behalf of the defendant, has urged in support of the application, so that I do not think an adjournment to permit an affidavit to be filed, proving in an evidentiary sense the matters he has asserted, would make any difference to the outcome, except to incur additional costs. For those reasons I think there would be neither utility nor economy in adjourning the proceedings for that purpose. 5I order that the summons be dismissed. I order that the defendant pay the plaintiff's costs of the proceedings.