Dexiosis Properties Benalla Pty Ltd v Beaver 1st Capital Management Pty Ltd [2022] NSWSC 1473

Dexiosis Properties Benalla Pty Ltd v Beaver 1st Capital Management Pty Ltd [2022] NSWSC 1473

BC First had shown a serious issue to be tried because it was seriously arguable that a contract was concluded on the amended Term Sheet and that the Term Sheet created a charge extending to the Bundanoon and Bowral properties to secure the claimed Non-Proceeding Costs. However, the balance of convenience favoured withdrawal of the caveats because the caveats prevented urgent refinancing needed to avoid default, sufficient equity would remain to protect BC First's claim, and orders permitting BC First to relodge identical caveats after registration of the new mortgages would protect its claimed interest pending final determination.

Jurisdiction
Australia
Judgment Date
27 October 2022
Procedural Posture
Application Under S 74 Ma(1) of the Real Property Act 1900 (nsw) for Withdrawal of Caveats / Interim Relief After Contested Hearing in the Equity Duty List
Outcome
Interim orders made requiring withdrawal of the two caveats and granting leave to the second defendant to lodge further caveats in identical terms after registration of the new mortgages.
Legal Topics
['caveats' 'withdrawal of Caveats' 'caveatable Interest' 'serious Issue to Be Tried' 'balance of Convenience' 'refinance Secured by Mortgages']
['land Law' 'equity'] ['caveats' 'withdrawal of Caveats' 'caveatable Interest' 'serious Issue to Be Tried' 'balance of Convenience' 'refinance Secured by Mortgages']

Case Brief

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Procedural Posture

Application Under S 74 Ma(1) of the Real Property Act 1900 (nsw) for Withdrawal of Caveats / Interim Relief After Contested Hearing in the Equity Duty List

Legal Issues

  1. 1 ['Whether BC First had established a serious issue to be tried as to the existence of the interest claimed in the Purnell Caveats.' 'Whether the balance of convenience favoured ordering withdrawal of the Purnell Caveats to allow refinancing to proceed.' 'Whether withdrawal should be ordered on terms permitting BC First to lodge further caveats in identical terms after registration of new mortgages.']

Ratio Decidendi

BC First had shown a serious issue to be tried because it was seriously arguable that a contract was concluded on the amended Term Sheet and that the Term Sheet created a charge extending to the Bundanoon and Bowral properties to secure the claimed Non-Proceeding Costs. However, the balance of convenience favoured withdrawal of the caveats because the caveats prevented urgent refinancing needed to avoid default, sufficient equity would remain to protect BC First's claim, and orders permitting BC First to relodge identical caveats after registration of the new mortgages would protect its claimed interest pending final determination.

Court Disposition

Interim orders made requiring withdrawal of the two caveats and granting leave to the second defendant to lodge further caveats in identical terms after registration of the new mortgages.

Orders

  • ['Upon the plaintiffs giving the usual undertaking as to damages in the form set out in UCPR r 25.8 pursuant to s 74MA(1) of the Real Property Act 1900 (NSW), and an undertaking not to encumber the Bundanoon and Bowral properties beyond $7,669,352.50 until the specified expiry, the second defendant was ordered by 12...