Schibaia v Elias [2013] NSWSC 1485

Schibaia v Elias [2013] NSWSC 1485

Existing caveats failed because they insufficiently described the estate or interest claimed—merely referencing 'equitable interest created pursuant to clause' is inadequate. However, the plaintiffs' proposed caveats, describing an interest as chargee by virtue of a charge over the land pursuant to the relevant clause, had substance under s 74O Real Property Act 1900 (NSW). Leave was granted to lodge fresh caveats in that form.

Jurisdiction
Australia
Judgment Date
25 September 2013
Procedural Posture
Application to Extend Caveats and for Leave to Lodge Fresh Caveats / Interlocutory; Ruling on Interlocutory Applications
Outcome
Application to extend operation of existing caveats refused; leave granted to lodge fresh caveats under s 74O Real Property Act 1900 (NSW); costs orders made in favour of defendants for part of the hearings.
Legal Topics
['caveats' 'stamp Duty' 'equitable Interests' 'construction of Deed' 'security Interests']
['real Property' 'equity' 'civil Procedure'] ['caveats' 'stamp Duty' 'equitable Interests' 'construction of Deed' 'security Interests']

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Procedural Posture

Application to Extend Caveats and for Leave to Lodge Fresh Caveats / Interlocutory; Ruling on Interlocutory Applications

Legal Issues

  1. 1 ['Whether existing caveats sufficiently identified the nature of the estate or interest claimed' 'Whether caveats could be extended despite alleged defects' 'Whether the Deeds were stamped and the effect of stamping' 'Whether charging clauses provided caveatable interest over property beyond that specified in the schedule' 'Construction of clauses 5 and 6 in Deed of Variation under s 74O Real Property Act']

Ratio Decidendi

Existing caveats failed because they insufficiently described the estate or interest claimed—merely referencing 'equitable interest created pursuant to clause' is inadequate. However, the plaintiffs' proposed caveats, describing an interest as chargee by virtue of a charge over the land pursuant to the relevant clause, had substance under s 74O Real Property Act 1900 (NSW). Leave was granted to lodge fresh caveats in that form.

Court Disposition

Application to extend operation of existing caveats refused; leave granted to lodge fresh caveats under s 74O Real Property Act 1900 (NSW); costs orders made in favour of defendants for part of the hearings.

Orders

  • ['Defendants to have their costs of and referable to the hearing yesterday and half of their costs of and referable to the hearing today; otherwise, costs to be costs in the proceedings.' 'Plaintiffs have leave pursuant to s 74O Real Property Act 1900 (NSW) to lodge caveats in the form exhibited as PX8, initialled...