37. 2004 – Second Caveat

For I am about to fall, and my pain is ever with me. I confess my iniquity; I am troubled by my sin.

On 16 January 2004 Amir Bodenstein, afraid that Mr Voukelatos, the owner of 39 Glebe Point Road, would sell or rent that property to someone also else, was granted a caveat over those premises.

In response, on 3 March the owner’s lawyer served Bodenstein with a notice of the proposed lapsing of the caveat.

During the same month Bodenstein asked Lands and Titles NSW about the lapsing date and was told it would be on 26 March.

On 23 March Bodenstein notified the owner’s lawyer that he was lodging a summons with the NSW Supreme Court seeking to extend the caveat. His purpose in so doing was to prevent cancellation of the lease on 39 Glebe Point Road.

On 25 March he lodged the summons and told the Honour Duty Judge that he had leased the property for 3 x 5 years but the landlord knew it had not been safe to lease.

A Supreme Court hearing was held on 26 March. Bodenstein was not granted leave to lodge a new caveat under equivalent terms to those of the former one.

On 15 April Mrs Voukelatos (the joint defendant with her husband Mr Voukelatos) lodged a request with the Registrar General seeking to surrender the lease by operation of law. That request stipulated that Bodenstein had indicated his intention to surrender the lease.

On 19 April, after the lease had been cancelled, Bodenstein was directed by the police not to enter 39 Glebe Point Road.

On 2 October the Registrar General granted Bodenstein a second caveat over the property, following the latter’s submission of new facts. On 11 November Bodenstein sent the owner a fax, advising him of the new caveat.

On 12 December the second caveat was deemed to have lapsed. On that date the judge in the court noted that the plaintiff (Bodenstein) could still, however, pursue his remedies by other means. The balance of Bodenstein’s summons was stood over until 17 February 2005.

In February 2005 the owner began renovating 39 Glebe Point Road and lodged a D.A. relating to that. He installed a storm water pipe and completed works regarding all the other fire safety issues that had been identified.

Bodenstein feared that those renovations were being done so the owner could rent the property out to someone else.

One of the remedies sought by Bodenstein was relief against fofeiture.

Contents
1. First Caveat
2. Lapsing notice
3. On 26th March
4. One remedy
5. Summons
6. First Caveat
7. Surrendering the Lease
8. Cancellation of the Lease
9. Second Caveat

1. First Caveat

On 16 January 2004 I was granted a caveat. I asked for the caveat because I still believed in my dream plan and I was afraid that Mr. Voukelatos would erase me from the title and sell or rent the place to some one else.  (Ex. IA 1-5, p 439-443). 

2. Lapsing notice

On 3 March 2004, Mr. Voukelatos’s lawyer served me a notice of proposed lapsing of caveat but since I did not know yet the exact procedure I did not record the date of service (Ex. IB 1, p 444).

3. On 26th March

In mid March 2004, I went to the office of Land and Titles NSW to find out the date of lapsing. The officer at LPI had said words to the effect of  “the lapsing of the caveat is on the 26 of March”. I requested a viewing of the lapsing date on the document at that office. This was not possible due to office regulations.

4. One remedy

On 23 March 2004, I notified Mr. Voukelatos’s lawyer that I am approaching the court to extend the caveat  (Ex. IC 1, p 445). In the summons I claimed for one remedy, to extend the operation of the caveat, in an attempt to  prevent  the cancellation of the Lease on the title.

5. Summons

On 25 March 2004, when I lodged the summons to the Supreme Court Honor Duty Judge I said words to the extent of  “I leased a property for 3 x 5, and the Landlord knew that the property is not safe. An officer from the Land and Titles NSW, told me that the lapsing is on 26 March 2004” and thus the hearing was scheduled for this date (Ex. IE 1-7, p 481-487).

6. First Caveat

In the hearing Mr. Voukelatos’s lawyer said that he called the office of land and titles and the officer told him that he lapsed the caveat 20 minutes before the call.  (Ex. IG 1, p 497). His honor judge was under the impression that I lodged the caveat 11 days after I entered the contract instead of two years and 11 days (as I discovered when the ruling was granted to me). I was not granted  leave for a new caveat  under equivalent terms  (Ex. IF 1-9, p 488-496).

7. Surrendering the Lease

On 15 April 2004, Mrs. Voukelatos (Joint Defendant) surrendered the Lease by operation of law at the Department of Lands with incomplete declaration  (Ex. JD 1-3, JE 1-2 p 507-511).

On 15 April 2004, Mrs. Vessela Voukelatos (Joint Defendant)  lodged with the Registrar General a request that was signed on 26 March 2004 to surrender the Lease by operation of law.

This request stipulated that I “had indicated an intention to  surrender the Lease  (See evidence attached )”.

In the affidavit from 15 April 2004, of Mrs. Voukelatos (Joint Defendant) there is no mention that I indicated any intention to surrender the Lease.

8. Cancellation of the Lease

On 19 April 2004, after the Lease was canceled at the LPI, the police directed me not to enter the premises, Event No. 20186275 (Ex. JC 1-4, p 502-506).

 “About 3:30pm on the 19th April 2004, Police were contacted by Council workers at the LOI in relation to the POI. Police attended and spoke to the POI about the matter. A short time later the POI attended Glebe Police Station and was spoken to in relation to this matter.”

9. Second Caveat

On 5 October 2004, the Registrar General granted me a fresh caveat due to the new terms that arose since the first caveat lapsed.

I requested a caveat because I still had hopes executing my plans at 39 Glebe Point Road and I did not want Mr. Voukelatos to sell or rent the place to someone else.

The Registrar General granted the caveat after I explained to her the new facts and interests.

On 11 November 2004, I send a fax notifying Mr. Voukelatos of the new caveat  (Ex. EN 1, p 213).

On 29 October 2004 and on 3 November 2004 I sent 2 faxes to Mr. Voukelatos’s  number in Sydney as this was the only way I could contact him  (Ex. EL 1, EM 1 p 211-212). I sent him the letter he sent to the council after the first Emergency Order was imposed on 2000 and the BSB structural engineer’s report from 28 February 2000. I wanted him to realise that I was aware of his prior knowledge of the structural problems and I hoped that as a result he would understand that I have every right to feel deceived and put a caveat on the premises. I also hoped that he would realize that maybe resolving our dispute is the best solution for both sides.

On 10 December 2004, the second caveat is deemed ‘lapsed’ because “by that time, the Registrar-General had cancel the recording of the Lease… thus it (the caveat) is not effective”. (Ex. JF 1-5, JG 1-3, JH 1-5 p 512-524).

The Honorable Judge also stated in His ruling:

i             “4  That (the lapsing of the caveat) does not mean the plaintiff cannot pursue his remedies. On the evidence at the present moment the property has not been re-leased nor as it been sold and in any event the plaintiff may have a claim for damages for breach of the terms of his Lease”.

ii          “6 As the caveat will lapse in any event , no order is necessary today so far as part 1 of the summons is concerned. The rest of the action will remain on foot”

iii        “I stand over the balance of the summons to the Registrar’s list on at 9.30 a.m. on 17 February 2005”.

Since the day Mr. Voukelatos knew that I was not going to let go of this matter he started renovating the premises he lodged his D.A. in 4 February and accelerated his cosmetic work.

He installed a storm water pipe… like Karen Davidson asked him on 1997 (reference to Karen). He complied with all the fire safety issues as was requested of him in 1990 (reference to the letter), installation of the gyprock red which I left there, on walls and ceiling. Mr. Voukelatos was trying to comply with all the safety issues required. I was afraid that the reason he is doing so is that he could rent the premises to some one else and as it turns out I was not mistaken.

One of the remedies I was seeking for was relief against forfeiture