Australia, June 24 -- New South Wales Land and Environment Court issued text of the following judgement on May 23:

1. This is a rather unfortunate dispute between a mother and son.

2. There are two aspects to the controversy that I am asked to quell:

1) Whether the plaintiff (the son) should be granted leave to discontinue his claim or whether it should be dismissed.

2) Associated with the first issue, whether the plaintiff should be ordered to pay the defendant's costs of the proceedings and, if so, whether a gross sum costs order should be made.

3. The first debate is an arid one in circumstances where it was not suggested that any dismissal would preclude fresh proceedings being commenced.

4. The real dispute was as to costs in circumstances where the proceedings are not going ahead and there has been no hearing on the merits. The relevant principles in this regard were, understandably, not in dispute. They were comprehensively set out by McGrath J in In the matter of Nutrimonde Pty Ltd [2024] NSWSC 806 at [56]-[100].

5. A brief outline of the relevant facts is as follows.

6. The plaintiff lodged a caveat on the title to the defendant's property in April 2019. The estate or interest claimed in the caveat was by virtue of an agreement dated 1 May 2017. The details supporting the claim were stated as "caveator has borrowed money to do renovation work". On 4 March 2025, the plaintiff was served with a lapsing notice dated 27 February 2025. On 19 March 2025, proceedings were commenced by the filing of a summons. No application for short service was made. Only interim relief was claimed extending the caveat until further order or alternatively seeking an order pursuant to s 74O of the Conveyancing Act 1919 (NSW) that the plaintiff have leave to lodge a further caveat in respect of the land. No final relief was claimed in the summons.

7. An affidavit in support of the summons was filed by Andi Warda, whose occupation is said to be "property investor". The first paragraph of that affidavit records that Andi Warda is, in fact, the solicitor for the plaintiff. The affidavit relevantly states at paras 5 to 10:

5. The plaintiff has informed me and I verily believe that the plaintiff claims to have a caveatable interest in the property acquired by him through contributions of $350,000 provided to the defendant for renovating and improving the property.

6. Since serving of the Lapsing Notice, the Plaintiff received correspondence from the Defendant stating that she wished for the lapsing notice to be withdrawn. Annexed and marked D is a copy of the letter.

7. On 18 March 2025, I rang the office of John Allanson & Associates and left a message for the principal John Allanson. John Allanson returned my call and advised that, at this stage, his office was obtaining instructions if they were instructed to accept service and would advise us once those instructions were received.

8. On 19 March 2025, I received a phone call from John Allanson, advising that he is instructed to accept service.

9. As the letter from the registered proprietor was addressed to her solicitors, there is some ambiguity as to whether her son, the Plaintiff, who is the caveator can rely on that letter as communication from the register proprietor that she wishes to withdraw the lapsing notice. This application has been made for the avoidance of doubt. Upon the defendant being served, I propose to ask her to consent to the attached orders to dispose of this matter. Annexed and marked E is a copy of the short minutes.

10. I am instructed that if the defendant changes her position from that expressed in her letter, the plaintiff intends to seek leave from the Court to put on further evidence disclosing the basis for the caveatable interest claim by him.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1970b0e4829b6d584542a361)

Disclaimer: Curated by HT Syndication.