Mills v Ruthol [1999] NSWSC 400

Mills v Ruthol [1999] NSWSC 400

There was a serious question to be tried as to whether the lessee validly exercised the renewal option, particularly given the discrepancy in the company identified in the letter of 18 March 1997 and the solicitor's statutory declaration stating that the renewal option was not exercised. It also could not be said that the plaintiffs' proposed claim for relief against forfeiture would fail. As the defendant did not show that the balance of convenience was otherwise, the caveat should be extended on terms requiring the plaintiffs to commence the foreshadowed claim within 21 days.

Jurisdiction
Australia
Judgment Date
28 April 1999
Procedural Posture
Application Under S74 K of the Real Property Act 1900 for an Order Extending the Operation of a Caveat / Hearing of Application
Outcome
Application granted; caveat extended on terms.
Legal Topics
['torrens System' 'caveats Against Dealings' 'option to Purchase Land' 'relief Against Forfeiture']
['conveyancing' 'property Law'] ['torrens System' 'caveats Against Dealings' 'option to Purchase Land' 'relief Against Forfeiture']

Case Brief

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Procedural Posture

Application Under S74 K of the Real Property Act 1900 for an Order Extending the Operation of a Caveat / Hearing of Application

Legal Issues

  1. 1 ['Whether caveat number 564585 had or may have substance so as to justify an order extending its operation under s74K of the Real Property Act 1900.' "Whether there was a serious question to be tried as to whether the lessee validly exercised the right to renew the lease, affecting the plaintiffs' option to purchase." 'Whether the plaintiffs may be able to maintain a claim for relief against forfeiture based on alleged improper conduct of the defendant company.']

Ratio Decidendi

There was a serious question to be tried as to whether the lessee validly exercised the renewal option, particularly given the discrepancy in the company identified in the letter of 18 March 1997 and the solicitor's statutory declaration stating that the renewal option was not exercised. It also could not be said that the plaintiffs' proposed claim for relief against forfeiture would fail. As the defendant did not show that the balance of convenience was otherwise, the caveat should be extended on terms requiring the plaintiffs to commence the foreshadowed claim within 21 days.

Court Disposition

Application granted; caveat extended on terms.

Orders

  • ['Upon the plaintiffs, through their counsel, giving the usual undertaking as to damages, the orders sought in paragraph 2 of the summons were made.' 'The plaintiffs were directed to file and serve within 21 days a statement of claim substantially in accordance with the draft document annexed to the affidavit of Mr...