Pacific Blue Australia Pty Ltd v Somalis [2008] NSWSC 16

Pacific Blue Australia Pty Ltd v Somalis [2008] NSWSC 16

Because the caveator's solicitor was aware of the substance of the application, the caveator's stated position was that the caveats would be withdrawn that day, and imminent settlements meant the plaintiff was justified in seeking the assurance of a court order, service of the summons was dispensed with and an order was made requiring withdrawal of the caveats. The Court declined to make the declaration sought on an ex parte basis and declined to restrain further caveats because no sufficiently cogent imminent threat was shown.

Jurisdiction
Australia
Judgment Date
22 January 2008
Procedural Posture
Ex Parte Application Concerning Withdrawal of Caveats Over Strata Lots / Duty Judge List; Ex Tempore Judgment
Outcome
Order made for withdrawal of caveats; declaration and restraint on further caveats not made at the ex parte hearing; balance of summons stood over.
Legal Topics
['caveats' 'withdrawal of Caveats' 'application to Restrain Lodgement of Further Caveats' 'caveatable Interest' 'service Dispensed With' 'contracts for Sale of Land']
['real Property' 'equity'] ['caveats' 'withdrawal of Caveats' 'application to Restrain Lodgement of Further Caveats' 'caveatable Interest' 'service Dispensed With' 'contracts for Sale of Land']

Case Brief

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Procedural Posture

Ex Parte Application Concerning Withdrawal of Caveats Over Strata Lots / Duty Judge List; Ex Tempore Judgment

Legal Issues

  1. 1 ["Whether the Court should order withdrawal of caveats when the caveator had not been served with the summons but the caveator's solicitor knew the substance of the application." 'Whether the Court should restrain the defendant from lodging further caveats over the land.' 'Whether the Court should declare on an ex parte application that the defendant had no caveatable interest in the land.']

Ratio Decidendi

Because the caveator's solicitor was aware of the substance of the application, the caveator's stated position was that the caveats would be withdrawn that day, and imminent settlements meant the plaintiff was justified in seeking the assurance of a court order, service of the summons was dispensed with and an order was made requiring withdrawal of the caveats. The Court declined to make the declaration sought on an ex parte basis and declined to restrain further caveats because no sufficiently cogent imminent threat was shown.

Court Disposition

Order made for withdrawal of caveats; declaration and restraint on further caveats not made at the ex parte hearing; balance of summons stood over.

Orders

  • ['Service of the summons dispensed with.' 'Order 2 in the summons made requiring withdrawal of the caveats.' 'Costs of the application reserved.' 'Further hearing of the summons appointed for Friday, 8 February 2008 before the Registrar.' 'Plaintiff directed to make available to Mr John Somalis, by delivery of a...