[14] As the land was, as at 15 August 2005 and presumably also on 22 June 2005 when the caveat was lodged, held by Jason Campbell and Jody-Lee Campbell as tenants in common, it falls within the definition of charged property (so far as Jason Campbell is concerned), within the terms of clause 17 to which I have referred, and (so far as Jody-Lee Campbell is concerned) it is freehold land in Australia the subject of the charge in the guarantee given by her. In those circumstances, it is plain enough that the effect of the documentation is to give Circuit Finance an interest by way of charge or encumbrance securing the obligations of Mr Campbell as lessee and Ms Campbell as guarantor under the lease and guarantee. Such an interest is manifestly capable of supporting a caveat."
7 For the reasons given by Brereton J and having regard to the evidence that the defendant is the registered proprietor of the property at Blacktown (he being also one of the persons constituting the "Lessee" under the lease agreement), I am satisfied that the plaintiff has shown, to the standard required by s.74K(2) of the Real Property Act, that the claim in the caveat "may have substance". In other words, I am satisfied that the plaintiff has shown that there is a serious question to be tried regarding the existence of the estate or interest as chargee, which is both asserted in the caveat and the subject of the claim for substantive relief in the present proceeding.
8 There is, however, a question to be addressed under s.74K(3). That section is as follows:
"Unless the Supreme Court has made an order dispensing with service, it may not hear an application made under subsection (1) unless it is satisfied that all interested parties disclosed by the notice which gave rise to the application have been served with copies of the application before the hearing."
9 There has been no service upon the defendant in the sense of personal service or delivery to him in a way which would be seen to satisfy general concepts of service. (I note, in this connection, that the rules as to service in s.74N of the Real Property Act do not apply since they are concerned with service on a caveator.) That being so, the court may not make an order under s.74K(2) - and, indeed, may not entertain the application - unless there is an order dispensing with service. This is the effect of s.74K(3). An application for an order dispensing with service was made in this case and I indicated at the start of the hearing, having reviewed the evidence about attempted service and steps that had been taken in that direction, that I was disposed to make such an order.
10 The circumstance that the application for an order under s.74K(2) is now before the court is traceable directly to an application for preparation of a lapsing notice lodged by the defendant, as registered proprietor, with the Registrar-General. That application for preparation of a lapsing notice is dated 8 September 2006. It is signed by the applicant. In the space marked "Lodged By" in which are to be inserted "Name, address or DX and Telephone", there is a reference to the defendant's name and an address at North Bondi. I have also been taken to a defence filed by the defendant in certain District Court proceedings, also dated 8 September 2006, in which the same address at North Bondi is given as the defendant's address.
11 From these two documents it may be inferred that at least as at 8 September 2006, the defendant regarded the North Bondi address as his address.
12 The evidence concerning attempted service shows that a process server went to the North Bondi address on 17 October 2006 and that the door was answered by a man who, in response to a request to speak to the defendant, said that the defendant had moved out six weeks ago and that other people had been there looking for him. The man also said that he had no forwarding address and no telephone number for the defendant. The process server left the summons and supporting affidavit in the letter box at the North Bondi premises.
13 Action directed towards lapsing of the caveat was initialled by the defendant, as registered proprietor, in such a way as to identify the North Bondi address as his address for the purposes of the application for the issue of a lapsing notice. In the absence of other knowledge, a caveator served with a lapsing notice has no means of knowing where the registered proprietor seeking lapsing may be found in order to effect service of an application under s.74K.
14 It has been held that service upon a caveator may be effected by leaving the relevant document at the address of the caveator stated in the caveat: Re Drinkwater (1929) 46 WN (NSW) 202; Ex parte Little (1958) 58 SR (NSW) 173. A similar approach is warranted in relation to service on a registered proprietor who has, by application under s.74J stating the registered proprietor's address, sought the issue of a lapsing notice. Service of such a notice sets a statutory process in motion in such a way that the caveator is put to the task of sustaining his or her caveat by approaching the Supreme Court but is deprived of the opportunity of doing so unless, within 21 days after such service, the caveator can move the court consistently with s.74K(3). That section assumes that a means of giving notice to the registered proprietor will be readily available to the caveator. Where the caveator's only recent knowledge comes from the s.74J application, it is reasonable to proceed on the basis that it is sufficient that the caveator seek out the registered proprietor at the address specified in that application.
15 It follows, in my view, that if, as in the present case, genuine attempts have been made to serve the registered proprietor at the address nominated in the s.74J application and, despite those genuine attempts, it has not been possible to effect service, the case is one in which the court can properly make an order of the kind contemplated by s.74K(3) dispensing with service of the application for an order extending the operation of the caveat. As I have said, the person initiating such an application before the court really has no way of discovering the registered proprietor for the purposes of service, except by reference to the application for the issue of the lapsing notice.
16 For those reasons, and in view of the evidence about attempted service and the response received by the process server at the North Bondi address, an order under s.74K(3) is warranted in this case.
17 Pursuant to s.74K(3) of the Real Property Act, I order that service of the summons, insofar as it seeks an order pursuant to s.74 extending the operation of caveat number AC 359373, be dispensed with.
18 Pursuant to s.74K(2) of the Real Property Act I order that the operation of caveat number AC 359373 be extended until further order.
19 I note the usual undertaking as to damages and that the order extending operation of the caveat is made upon that undertaking.
20 The summons is stood over to the registrar's list on 5 February 2007.
21 Each party has liberty to apply on three days notice
22 The defendant will pay the plaintiff's costs of today.
23 The order extending the caveat may be taken out forthwith.
**********