IIB Global NV & Anor v Scott Darren Pascoe, Elizabeth Ann Occleshaw and Lindsey Jane Dyason (Registered Proprietors) & Ors (No 2) [2011] NSWSC 1270

IIB Global NV & Anor v Scott Darren Pascoe, Elizabeth Ann Occleshaw and Lindsey Jane Dyason (Registered Proprietors) & Ors (No 2) [2011] NSWSC 1270

The caveat was extended because Mr Pascoe was a registered proprietor in his capacity as bankruptcy trustee, there was at least a seriously arguable case that PTAL had no continuing mortgage interest to transfer to IIB Global or could not properly enforce the mortgage after agreeing to discharge it and receiving payment, and therefore there was a seriously arguable case that registration of the transfer would be an improper dealing with Mr Pascoe's estate or interest. The serious question and balance of convenience requirements were satisfied.

Jurisdiction
Australia
Judgment Date
14 October 2011
Procedural Posture
Interlocutory Application Concerning Extension of a Caveat / Hearing of Paragraph 2 of a Motion Seeking Extension of Caveat AG197714 Until Further Order of the Court
Outcome
Order extending caveat made; second plaintiff ordered to pay costs of and incidental to paragraph 2 of the motion.
Legal Topics
['caveat' 'extension of Caveat' 'lapsing Notice' 'registered Proprietor' 'mortgage Discharge' 'bankruptcy Trustee']
['real Property' 'equity'] ['caveat' 'extension of Caveat' 'lapsing Notice' 'registered Proprietor' 'mortgage Discharge' 'bankruptcy Trustee']

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Procedural Posture

Interlocutory Application Concerning Extension of a Caveat / Hearing of Paragraph 2 of a Motion Seeking Extension of Caveat AG197714 Until Further Order of the Court

Legal Issues

  1. 1 ['Whether the operation of Caveat AG197714 lodged in relation to the Brierfield land should be extended until further order of the Court.' "Whether Mr Pascoe's caveator's claim has or may have substance under s 74K of the Real Property Act 1900 (NSW)." "Whether there was a seriously arguable case that registration of the transfer of mortgage from PTAL to IIB Global would be an improper dealing with Mr Pascoe's estate or interest."]

Ratio Decidendi

The caveat was extended because Mr Pascoe was a registered proprietor in his capacity as bankruptcy trustee, there was at least a seriously arguable case that PTAL had no continuing mortgage interest to transfer to IIB Global or could not properly enforce the mortgage after agreeing to discharge it and receiving payment, and therefore there was a seriously arguable case that registration of the transfer would be an improper dealing with Mr Pascoe's estate or interest. The serious question and balance of convenience requirements were satisfied.

Court Disposition

Order extending caveat made; second plaintiff ordered to pay costs of and incidental to paragraph 2 of the motion.

Orders

  • ['The operation of Caveat AG197714 lodged in relation to the land which is situated at xxx xxxxxxxx xxxx, Brierfield NSW 2454 contained in Certificate of Title Folio 31/707896 be extended until further order of the Court.' 'The second plaintiff pay the costs of and incidental to paragraph 2 of the motion.' 'These...