[2011] NSWSC 73
Bank of Queensland v Hoerman
Under the Real Property Act 1900, s 74MA(2)(a) first defendant ordered to withdraw caveat and until registration of the transfer of the land under the contracts for sale or further order, the Registrar-General not accept for lodgement and remove or not record in the Register any caveat lodged in respect of the property on or after 14 February 2011 otherwise than with the leave of the court.
Catchwords
CONVEYANCING - Land Titles under the Torrens System - Caveats against Dealings - mortgagee sale frustrated by series of caveats lodged one after the other on lapsing of prior caveat - interest claimed that land was in the principality of Snake Hill that had seceded from Australia was not subject to the jurisdiction of the court
Cases cited
- Lew v Bluescope Distribution Pty Ltd[2010] NSWSC 794
- Urban Traders Pty Ltd v Proceris Pty Ltd[2005] NSWSC 11
Legislation cited
- Lew v Bluescope Distribution Pty Ltd [2010] NSWSC 794
- Real Property Regulations 2003
- 92
Judgment
EX TEMPORE Judgment
- [1]
I have before me an amended summons to deal with caveats that have been lodged on the land that I will describe in a moment. The hearing of the amended summons is opposed by the third defendant.
- [2]
The bases of the opposition are her claims that there was a secession of the principality of Snake Hill from New South Wales which was accepted by the Governor General and the amended summons is outside the jurisdiction of this court and as it is a matter of international law it must be referred to the High Court of Australia or the International Court of Justice. I do not agree with those submissions.
- [3]
The amended summons was taken out with respect to caveats lodged on land in New South Wales and is within the jurisdiction of this court. The plaintiff is the mortgagee in possession of residential premises at 11 Melaleuca Close, Castle Hill.
- [4]
The first defendant, Karl Hoermann, lodged a caveat with respect to the property on or before 8 February 2011. The second defendant is the Registrar-General of New South Wales who has entered a submitting appearance. The third defendant, as I have mentioned, is Ms Paula Jensen, otherwise known as Princess Paula of the Principality of Snake Hill.
- [5]
The registered proprietors of the property and mortgagors under the mortgage are the third defendant, Ms Helena Jensen and Mr Paul Jensen. Each has been served in accordance with orders made by Bergin CJ in Eq on 10 February 2011. The matter is related to other proceedings for possession and yet other proceedings for an extension of caveat.
- [6]
On or about 10 June 2005 the bank as mortgagee and the Jensens' as mortgagors entered into a mortgage over the property.
- [7]
On or about 22 January 2009 the bank commenced the possession proceedings because of default under the mortgage and sought judgment in the amount of $869,902.58 plus interest and costs. The Jensens' were the defendants in those proceedings.
- [8]
On 21 July 2009 Hoeben J ordered that a defence filed in the possession proceedings be struck out. The defence relied primarily on the allegation that the property was part of the independent territory of the principality of Snake Hill and was not subject to the jurisdiction of this court. A motion for default judgment was filed that day.
- [9]
On 29 September 2009 default judgment was entered ordering the Jensens' to give possession of the property and pay $919,774.68 together with costs.
- [10]
On or about 3 December 2009 the bank obtained possession of the premises.
- [11]
On or about 15 January 2010, Ms Paula Jensen filed a notice of motion seeking orders that, relevantly, the default judgment be set aside or enforcement of it be stayed. The primary ground for that relief was the status of the principality of Snake Hill.
- [12]
On 13 May 2010, Davies J heard and dismissed the notice of motion.
- [13]
On 18 June 2010, Ms Paula Jensen sought an injunction and/or stay of the orders of Hoeben and Davies JJ pending an appeal. On that day Bergin CJ in Eq heard the application and refused to make the orders sought.
- [14]
On 19 June 2010, in exercise of its power of sale, the bank entered into a contract for sale of the property to Jennifer and Nigel Hancock.
- [15]
Settlement of that sale contract was initially scheduled to take place on 19 July 2010 but was prevented by a caveat lodged by the principality of Snake Hill on or about 24 December 2009.
- [16]
On 7 July 2010 the bank served a lapsing notice in respect of that first caveat. That caveat was allowed to lapse.
- [17]
In the period from June 2010 to February 2011 further caveats have been lodged by different persons one after the other and in circumstances where each caveat was lodged in very close proximity to the expiry of the period for lapse of the preceding caveat. Two subsequent attempts at settlement of the contract for sale on 30 September 2010 and 13 December 2010 did not proceed due to the presence of one of the caveats.
- [18]
The details of the dates on which those caveats were lodged and the interest in the land claimed by the caveator are as follows: