[Evidence and argument followed.]
Can the Plaintiff bring this Application
6 I outlined the circumstances in which the matter was before me in the judgment I recently gave concerning the application for adjournment.
7 So far as the ability of the plaintiff to make the application is concerned the situation is, it seems to me, that the plaintiff is making, today, a fresh application for an order that the caveats be withdrawn, on the basis of facts which have arisen since my earlier judgment.
8 A decision of the Court declining to order a caveat be withdrawn, at least where the reasons are like those which I gave in my judgment of 10 May 2004, is a decision of an interlocutory kind. It is open to a party to make a fresh application for the caveat to be withdrawn, on the basis of facts which have arisen since an earlier refusal of the Court to make an order that the caveat be withdrawn, without any question of re-opening a previous judgment arising.
Whether the Caveat should be Removed
9 The plaintiff seeks an order that the caveat, insofar as it relates to Lots 7 and 9, be withdrawn. Nothing has changed since my previous judgment about the prima facie entitlement of the plaintiff to not have the caveat interfere with settlement of the sales of Lots 7 and 9, in circumstances where the proceeds of any such sale would be to the Commonwealth Bank. The principles are set out at paragraph [15] of that judgment.
10 The only basis on which I earlier declined to make an order for withdrawal of the caveat was that an undertaking was given. That undertaking has not been complied with. The undertaking which was given was, as recorded in paragraph [23] of my earlier judgment, an undertaking "To attend and hand over withdrawal of caveat on Wednesday if the purchaser is then willing to complete ".
11 There is evidence that the defendant executed withdrawals of caveat, and delegated the task of attending the settlement with those documents to a solicitor. The solicitor failed to attend through, it seems, not knowing precisely where he was going, and not leaving enough time to get there. Under those circumstances, when the undertaking has proved not to be something that the Court can count on, the reasons which I formerly gave lead to the conclusion that the caveats should now be withdrawn.
12 Mr Newlinds SC, in opposition to an order being made for withdrawal of the caveat, submitted that the settlement went off because both parties were not ready. That, in my view, simply does not matter. The only unreadiness on the part of the vendor which has been clearly demonstrated is that it did not have the withdrawals of caveat available.
13 Next, Mr Newlinds submitted that the failure to perform the undertaking was not the defendant's fault, and he had used his best endeavours to comply with it. The undertaking in its terms was not one which required best endeavours - it required performance. The reasons why the undertaking was not performed might be relevant to whether the breach was of a type which has consequences beyond this present application. However, all that matters for the present purposes is that it was in fact not carried out.
14 Next, Mr Newlinds says that a letter from the plaintiff's solicitors of 14 May 2004 suggests that the plaintiff does not accept that it is bound to use withdrawals of caveats, relating to the other four lots which were the subject of my earlier orders, only for the purpose of permitting settlement of the contracts which are now on foot. It is to seek to limit the use which can be made of those four withdrawals of caveat that the defendant is foreshadowing the bringing of an application this coming Friday. However, Mr Newlinds informs me that that application is not one which will seek to limit the use of the caveats to effect settlement of sales the proceeds of which will be paid to the Commonwealth Bank in discharge of its mortgage.
15 If an order were made for withdrawal of the caveats relating to Lots 7 and 9, and if sales of other lots in the building took place, so that the Commonwealth Bank had been paid out, a circumstance might then arise when it would be appropriate for the defendant to make an application under section 74O of the Real Property Act 1900 to lodge a fresh caveat claiming the same interest as it has claimed in the two caveats now under consideration. That possibility can be dealt with when and if it happens.
16 I order pursuant to section 74MA of the Real Property Act 1900 that caveat registered number AA 58913 Y to the extent it affects the land contained in folio identifiers 7/SP70713 and 9/SP70713 be removed.