Chan v Grimston [2016] NSWSC 367

Chan v Grimston [2016] NSWSC 367

Because the prior extension order was not lodged with the Registrar-General before LPI closed, s 74J operated so that the caveat lapsed and the Registrar-General had no discretion to avoid that result. To restore the parties to the position intended by the Court's earlier order while preserving the plaintiffs' onus to justify the continued caveat, leave was granted under s 74O to lodge a further caveat in identical form, coupled with an order requiring withdrawal on 6 April 2016 unless the Court further ordered otherwise.

Jurisdiction
Australia
Judgment Date
30 March 2016
Procedural Posture
Equity Duty List; Application Concerning Extension of Caveat and Leave to Lodge Further Caveat / Procedural Ruling
Outcome
Leave to file further caveat granted.
Legal Topics
['torrens System' 'caveats' 'lapsing Notice' 'extension of Caveat' 'leave to Lodge Further Caveat']
['real Property' 'equity'] ['torrens System' 'caveats' 'lapsing Notice' 'extension of Caveat' 'leave to Lodge Further Caveat']

Case Brief

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Procedural Posture

Equity Duty List; Application Concerning Extension of Caveat and Leave to Lodge Further Caveat / Procedural Ruling

Legal Issues

  1. 1 ["Whether the plaintiffs should be granted urgent relief concerning a caveat over the defendants' land after a lapsing notice under s 74J of the Real Property Act 1900 (NSW)." "Whether, after the caveat lapsed because the Court's extension order was not lodged with the Registrar-General in time, leave should be granted under s 74O of the Real Property Act 1900 (NSW) to lodge a further caveat in the same terms." 'How to preserve the position that the plaintiffs bear the onus at the further hearing to justify the continued presence of a caveat on the title.']

Ratio Decidendi

Because the prior extension order was not lodged with the Registrar-General before LPI closed, s 74J operated so that the caveat lapsed and the Registrar-General had no discretion to avoid that result. To restore the parties to the position intended by the Court's earlier order while preserving the plaintiffs' onus to justify the continued caveat, leave was granted under s 74O to lodge a further caveat in identical form, coupled with an order requiring withdrawal on 6 April 2016 unless the Court further ordered otherwise.

Court Disposition

Leave to file further caveat granted.

Orders

  • ['The plaintiffs are to file and serve on or before 1 April 2016 an amended summons and any additional evidence upon which they propose to rely in support of the application for an extension of the Caveat.' 'The application for the extension of the Caveat is listed for hearing before the duty judge at 10 am on...