2-6 First Ave Pty Ltd v Aquamore Credit Equity Pty Ltd [2018] NSWSC 980

2-6 First Ave Pty Ltd v Aquamore Credit Equity Pty Ltd [2018] NSWSC 980

Although there was a serious question to be tried regarding repudiation and contract termination, the balance of convenience did not favour extending the caveat because the plaintiff could not provide a substantive undertaking as to damages, the defendant faced potential substantial loss if the sale was delayed, and the risk to the defendant outweighed that to the plaintiff.

Parties
Plaintiff: 2-6 First Ave Pty Ltd; Defendant: Aquamore Credit Equity Pty Ltd
Jurisdiction
Australia
Judgment Date
27 June 2018
Procedural Posture
Application / Interlocutory Application for Extension of Caveat
Outcome
Application dismissed
Legal Topics
Caveats, Removal of Caveat, Repudiation of Contract, Contract Termination, Balance of Convenience
Equity Land Law Caveats Removal of Caveat Repudiation of Contract Contract Termination Balance of Convenience

Case Brief

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Parties

2-6 First Ave Pty Ltd

Plaintiff

Aquamore Credit Equity Pty Ltd

Defendant

Procedural Posture

Application / Interlocutory Application for Extension of Caveat

Legal Issues

  1. 1 Whether a serious question to be tried exists as to the caveator's claimed interest under the contract for sale
  2. 2 Whether the balance of convenience favours continuation of the caveat
  3. 3 Effect of inability to proffer an undertaking as to damages

Ratio Decidendi

Although there was a serious question to be tried regarding repudiation and contract termination, the balance of convenience did not favour extending the caveat because the plaintiff could not provide a substantive undertaking as to damages, the defendant faced potential substantial loss if the sale was delayed, and the risk to the defendant outweighed that to the plaintiff.

Court Disposition

Application dismissed

Orders

  • Application to extend the caveat refused
  • Plaintiff to pay defendant's costs of the application