The Grinch Who Almost Stole Christmas

1-February-2019 Commercial Disputes By Jamal Bakalian

It was an unusually cold, windy Summer’s day in the Northern Sydney suburb of Corrambi* The time was 3pm and the day was Thursday. Claire’s conveyancer, Evan* telephoned her and said: “Claire, we won’t be able to settle today – I’m very sorry.” Claire was taken by surprise. The sale of her home in Wongerton* just absolutely had to settle ASAP or else she would not have enough funds to complete the purchase of her new property in Lomo Bay*.

“Why is the sale not going to settle today Evan? Please explain!” Claire was borderline hysterical.

“Claire, someone’s lodged a Caveat against your property in Wongerton.” Evan exclaimed.

“You’ve got to be kidding me. Please tell me who did this?” Claire asked, bewildered.

“Does the name Paul Milka* ring a bell at all?” Evan asked.

Claire was mortified.

Flashback to almost six years ago, Claire and Paul had once been a couple – not a De Facto couple, not a couple who lived together, but rather, a couple who dated each other for a period of five years and then broke up.

When Paul heard that Claire had put her home at Wongerton on the market, Paul acted fast and lodged a Caveat against her property, citing in his lodgement form ‘financial contribution made during relationship and care for children.’ Paul was alleging that he should be paid some form of monetary compensation for his alleged ‘contribution’ during the course of his relationship with Claire, and that this monetary compensation entitled him to claim a stake in Claire’s property. Paul and Claire did not have children together, never lived together, and Paul’s name was not on title of Claire’s property at Wongerton. These factors, along with others, meant that Paul did not have what’s called a caveatable interest in Claire’s property. And in any case, Paul was grossly out of time to make a claim in the Family Court, given the jurisdictional time limit of 2 years post-relationship breakdown – and it had been almost six.

As soon as Claire was aware of the Caveat, she arranged for what’s called a Lapsing Notice, to be lodged at the NSW Land Registry Services office. The Lapsing Notice comes with an expiry date, which means that if the caveator (Paul in this case) does not take the matter to Court within 21 days, the caveat is removed from title.

This was all very well and good, except that Claire could not wait 21 days. Her settlement for the sale of her Wongerton property had to be completed by 11 December as she had been served, by the purchaser, with a Notice to Complete. On top of this, her own purchase of the house in Lomo Bay was due to settle on 17 December. If she did not complete the sale of Wongerton, she could not complete the purchase of her dream home in Lomo Bay. She would be up for damages, costs and interest if either (or both) of these settlements fell through. Claire felt she was caught between a rock and a hard place.

It was at this junction, that Streeterlaw came into the picture.

When Streeterlaw caught wind of the situation, their specialist property and commercial litigation team took steps to immediately serve a letter of demand on the Grinch, aka Paul, informing him of just how much trouble he’d be in if he did not withdraw the Caveat by 12pm the next day.

Streeterlaw did not stop there, they organised a Summons seeking short service upon the caveator and an Affidavit from Claire setting out the injustice of the entire situation. Once it was clear that the grinch was not going to do the right thing, the very next day after serving the letter of demand, one of Streeterlaw’s well-equipped, adrenaline-seeking Solicitors ran up the stairs of the majestic Philip St Building of the Supreme Court and filed the Summons and Affidavit and secured a Hearing date scheduled for 48 hours later (7 December). All this work had been done in a matter of two days.

It was now 6 December, and the date of settlement of Wongerton was fast approaching.

Once the filed Summons and Affidavit were sent to Paul – reality set in that his threat of an unfounded caveat was not going to be taken lightly by Claire.

“We broke up almost 6 years ago! This is just so wrong. I can’t believe that someone could be capable of this degree of malice!”

Little did she know, Claire’s feelings of exasperation were soon going to subside.

Paul got in contact with Streeterlaw and made offers of monetary compensation that ranged from him accepting a payment from Claire of $100,000 for his withdrawal of caveat, to suggesting that he would then accept $35,000 to withdraw the caveat. However, Streeterlaw made it very clear that their client would not be making any such payment to Paul. Their insistence that Paul did not have a caveatable interest coupled with their tenacious determination that Paul would be pursued for costs and damages against him personally – saw Paul’s defiance begin to waiver.

With the hearing date on 7 December fast approaching, Paul sent a final email in the late hours of the evening of 6 December agreeing to withdraw the caveat and withdraw all requests for monetary compensation from Claire. VICTORY!

The Solicitors at Streeterlaw did not stop there. Along with ensuring they had a signed copy of a withdrawal of caveat from Paul, they also insisted that Paul sign Consent Orders, which were then entered into Court and lodged with the NSW Land Registry along with other very important documents to withdraw the caveat.

On 10 December, the caveat was finally removed, with Claire’s Christmas suddenly looked a whole lot brighter.

“Thank you for being so efficient & getting onto this matter straight away! From Claire”

*Suburbs and names have been changed to protect the privacy of our clients

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Written by Jamal Bakalian

Jamal Bakalian

After studying a double degree in Law and International & Global Studies at Sydney University, Jamal completed her GDLP at the College of Law. She is currently undertaking her Masters of Law (majoring in Commercial Litigation). Jamal has been practicing Law for 5 years. With a passion for resolving disputes, Jamal is a valuable member of the Commercial Litigation team at Streeterlaw.

Call us on 02 8197 0105 to book an appointment with Jamal Bakalian!

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