Albarran v Theodorou [2006] NSWSC 9

This case was brought by a caveator to extend the operation of a caveat threatened by a lapsing notice. The caveatable interest arose pursuant to a charging clause in a deed of guarantee and indemnity.

On 11 January 2006 the plaintiffs’ solicitors wrote a letter before action requesting that the lapsing notice be removed. It was not. Proceedings were commenced shortly thereafter.

On the day of judgement the lapsing notice was been withdrawn. His Honour held:

It is quite clear that the plaintiffs had a caveatable interest. There was no basis for seeking its lapsing. That there was no basis has been amply demonstrated by the conduct of the second defendant, in withdrawing the lapsing notice today. The defendants have not appeared in the proceedings, but I am satisfied that the service of process has occurred. Requiring proceedings to begin, when there is no basis upon which those proceedings could be opposed, is one circumstance in which an indemnity costs order can be granted. I am satisfied that this is an appropriate case for making such an order.

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