Van der Merwe v Cantale [2021] NSWSC 1203

Van der Merwe v Cantale [2021] NSWSC 1203

Section 74O of the Real Property Act 1900 (NSW) applies because the second caveat was lodged by the same caveators in respect of the same estate or interest as the first caveat and based on the same facts, and is thus of no effect; therefore, an order for withdrawal of the caveat is appropriate.

Jurisdiction
Australia
Judgment Date
14 September 2021
Procedural Posture
Equity Proceeding (application by Notice of Motion) / Interlocutory Application for Removal of Caveat
Outcome
Order for withdrawal of caveat and payment of costs to the defendant.
Legal Topics
['caveats' 'successive Caveats' 'caveatable Interest' 'sale of Land' 'construction of Real Property Act 1900 (nsw) S 74 O']
['land Law' 'equity'] ['caveats' 'successive Caveats' 'caveatable Interest' 'sale of Land' 'construction of Real Property Act 1900 (nsw) S 74 O']

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Procedural Posture

Equity Proceeding (application by Notice of Motion) / Interlocutory Application for Removal of Caveat

Legal Issues

  1. 1 ['Whether s 74O of the Real Property Act 1900 (NSW) applies to bar a successive caveat lodged by the same caveators based on the same facts' 'Whether there is a caveatable interest sufficient to support the caveat that was lodged']

Ratio Decidendi

Section 74O of the Real Property Act 1900 (NSW) applies because the second caveat was lodged by the same caveators in respect of the same estate or interest as the first caveat and based on the same facts, and is thus of no effect; therefore, an order for withdrawal of the caveat is appropriate.

Court Disposition

Order for withdrawal of caveat and payment of costs to the defendant.

Orders

  • ['Order pursuant to s74MA of the Real Property Act 1900 (NSW) that the first and second plaintiffs withdraw caveat AR378107 forthwith.' 'Order that these orders be entered forthwith.' "Order that the first and second plaintiffs pay the defendant's costs of the motion."]