Auzhair Supplies Pty Ltd (In Liq) v Gerace [2014] NSWCA 313

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Auzhair Supplies Pty Ltd (In Liq) v Gerace [2014] NSWCA 313 Hearing dates: 5 September 2014 Decision date: 09 September 2014 Before: Meagher JA Decision: (1) Upon the plaintiff by its counsel giving an undertaking to the Court in the terms of paragraphs (2) and (3) of the Short Minutes of Order dated 9 September 2014 initialled and placed with the papers, order that the operation of caveat number AH998383H lodged in relation to the land contained in Certificate of Title, Folio Identifier 103/1175246 be extended until the plaintiff's application for special leave to appeal to the High Court of Australia in proceedings S144 of 2014 is heard and determined and, in the event that special leave to appeal is granted, until the appeal proceedings in the High Court of Australia are heard and finally determined. (2) Order that the costs of this application be costs in these proceedings. (3) Order that these proceedings be remitted to the Equity Division of the Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: REAL PROPERTY - application to extend operation of caveat under s 74K(1), Real Property Act 1900 (NSW) - where interest claimed is equitable charge securing payment of judgment which has been set aside on appeal to this Court - where application for special leave to appeal to High Court - where accepted that reasonably arguable case for grant of special leave Legislation Cited: Corporations Act 2001 (Cth) ss 180-183 Real Property Act 1900 (NSW), ss 74F, 74J, 74K Supreme Court Act 1970 (NSW), s 31(3) Uniform Civil Procedure Rules, r 1.21(1)(b) Cases Cited: Gerace v Auzhair Supplies Pty Ltd [2014] NSWCA 181 In the Matter of Auzhair Supplies Pty Ltd (In Liq) [2013] NSWSC 1 Category: Interlocutory applications Parties: Auzhair Supplies Pty Limited (In Liquidation) (Plaintiff) Roy Gerace (First Defendant) Ilario Gerace (Second Defendant) Domenico Gerace (Third Defendant) Anna Gerace (Fourth Defendant) Representation: Counsel: J Johnson, P O'Dea (Plaintiff) DPM Ash, WK Soon (Defendants) Solicitors: Carroll & O'Dea Lawyers (Plaintiff) Sachs Gerace Lawyers (Defendants) File Number(s): 2014/258317