Patel v H Lal & Associates [2008] NSWSC 964 (3 September 2008)

Last Updated: 17 September 2008

NEW SOUTH WALES SUPREME COURT

CITATION:
Patel v H Lal & Associates [2008] NSWSC 964


JURISDICTION:
Equity Division
Duty List

FILE NUMBER(S):
4468/08

HEARING DATE(S):
3 September 2008


EX TEMPORE DATE:
3 September 2008

PARTIES:
Jenny Patel (plaintiff)
H Lal & Associates Pty Ltd (first defendant)
Husmukh Lal (second defendant)

JUDGMENT OF:
Brereton J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
Ms J Patel (in person) (plaintiff)
Mr H Lal (in person) (defendant)

SOLICITORS:



CATCHWORDS:
REAL PROPERTY – CAVEATS – application to extend caveat until further order and to adjourn proceedings – where lapsing notice served on applicant caveator – where no discernable caveatable interest in land – whether Registrar General has discretion to extend operation of caveat once lapsing notice served – where caveat would lapse in intervening period if adjournment were granted

LEGISLATION CITED:
(NSW) Real Property Act 1900, ss 74K, 74J

CATEGORY:
Principal judgment

CASES CITED:


TEXTS CITED:


DECISION:
Summons for extension of caveat dismissed.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY LIST


BRERETON J

Wednesday, 3 September 2008


4468/08 Patel v H Lal & Associates Pty Ltd

JUDGMENT (ex tempore)

1 HIS HONOUR: By summons filed on 29 August 2008 pursuant to leave granted by me that day and made returnable today with an abridgment of time for service, the plaintiff Jenny Patel claims, in substance, an order that caveat AE62583 be extended until further order.

2 The caveat, which Ms Patel lodged on or about 1 July 2008, affects land comprised in folios B/412067 and 1/1054775 of which the first defendant H Lal & Associates Pty Ltd is the registered proprietor, and claims an interest as follows: “Notice of default judgment $40,000 plus notice of writ." That interest is said to arise by virtue of a statement of claim dated 15 May 2005 and a notice of default judgment dated 19 June 2008 in proceedings in the North Sydney Local Court, in which Ms Patel sued the second defendant Mr Lal personally (not the corporate first defendant H Lal & Associates Pty Ltd), and apparently recovered a default judgment, which judgment has since been set aside.

3 H Lal & Associates applied for a lapsing notice on 6 August 2008. There is some suggestion that 21 days from date of service expired on 31 August 2008, although it is not clear whether or not evidence of service has been lodged with the Registrar General, nor whether the caveat has, in fact, already lapsed. If it has not, then upon evidence of service being lodged, it must lapse in the not too distant future.

4 Ms Patel, who had foreshadowed in communications with my Associate that she would apply for an adjournment today, has pressed that application, which Mr Lal has opposed. Ms Patel has indicated that she has an appointment to obtain legal advice in the next day or so. Ordinarily, I would be inclined to accede to an application for an adjournment if there were the slightest utility in it, but for the reasons to which I will come, it seems to me there would be no utility in granting the adjournment sought. It needs to be borne in mind that where a lapsing notice is served in respect of a caveat, the Court has power to extend the operation of a caveat only if satisfied that the caveator's claim may have substance, and is otherwise required by (NSW) Real Property Act 1900, s 74K(2), to dismiss the application.

5 I indicated to Ms Patel on the ex parte application for an abridgement for time for service that it seemed very doubtful that there could be a caveatable interest. I have already set out the interest described in the caveat. On its face, that does not show any interest in land at all. A judgment for a money sum is not and does not give rise to any interest in land. Ms Patel has adduced further evidence in her affidavit, setting out the circumstances underlying the judgment. In essence, she says that there was an agreement, made in about January 2002, orally and by email, by which she agreed to lend Mr Lal a sum of money at interest, and that she banked the moneys agreed to be lent into H Lal & Associates bank account. She says that "if a security had been provided for the borrowing ... I would not have to resort to placing a caveat or seeking its maintenance, however, Mr Lal deliberately did not provide any security ... ". She then asserts that Mr Lal's assets are owned by the company H Lal & Associates.

6 There is absolutely nothing in the evidence to suggest that it was a term of the loan that security would be provided. The complaint that Mr Lal deliberately did not provide any security does not amount to an assertion that there was an agreement to provide any security, and is inconsistent with the creation of any caveatable interest. The circumstance that Mr Lal may have, as Ms Patel would allege, taken advantage of her by not providing security does not create any security interest in his assets, let alone in those of the corporate first defendant, in her favour. The evidence does not disclose the slightest basis for supposing that Ms Patel has any caveatable interest in the subject land.

7 Moreover, if I were to adjourn the matter for the month which Ms Patel sought, it would – in the absence of agreement between the parties, which is not forthcoming – be inevitable that the caveat would lapse in the meantime, so that there would be no utility in any such adjournment.

8 Ms Patel has suggested that the Registrar General would not lapse the caveat if aware that the proceedings were on foot. I have to say, first, that that is not the Court's experience of how the Registrar General operates – to the contrary, the Registrar General will lapse a caveat unless a sealed minute of an order of the Court extending the caveat is served before the date on which it is due to lapse; and, secondly, as I understand the operation of Real Property Act, s 74J(4), if evidence of service of the lapsing notice is lodged, the Registrar General has no discretion but is obliged to make a recording in the register to the effect that the caveat has lapsed.

9 Accordingly, for both of these reasons – namely, first that the argument that there is a caveatable interest simply cannot succeed, and secondly, that an adjournment would result in the inevitable lapsing of the caveat – there is no utility in acceding to the application for an adjournment.

10 I therefore order that the summons be dismissed.

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LAST UPDATED:
17 September 2008