Iaconis v Lazar [2007] NSWSC 1103

Iaconis v Lazar [2007] NSWSC 1103

The caveat over the Blacktown land could not be maintained because the registered proprietors were not parties to the Exclusive Mandate and there was no evidence that the mandate parties had any interest in that land. The caveat over the Narrabeen land could not be supported because the second defendant did not show that the contractual conditions for the claimed brokerage and other fees, and therefore the charge under clause 7, had been satisfied: the approval obtained was for a materially different loan, any authority to vary the loan was doubtful, and there was no evidence that the required invoice or notice was sent. The caveats were therefore ordered to be removed under s 74MA of the...

Jurisdiction
Australia
Judgment Date
05 October 2007
Procedural Posture
Application Under S 74 MA of the Real Property Act 1900 to Withdraw Caveats, With Final Relief Also Sought Under S 7 of the Contracts Review Act 1980 / Interlocutory Application Concerning Removal of Caveats
Outcome
Caveats AD148260T and AD148274G ordered to be removed; second defendant ordered to pay the plaintiffs' costs of the application to remove caveats on the indemnity basis; all other costs reserved.
Legal Topics
['caveats' 'equitable Charge' 'equitable Mortgage' 'brokerage Fee Secured Over Land' 'contracts Review Act Claim' 'option to Purchase Mortgaged Property' 'high Interest Rates']
['conveyancing' 'mortgages' 'equity' 'real Property'] ['caveats' 'equitable Charge' 'equitable Mortgage' 'brokerage Fee Secured Over Land' 'contracts Review Act Claim' 'option to Purchase Mortgaged Property' 'high Interest Rates']

Case Brief

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Procedural Posture

Application Under S 74 MA of the Real Property Act 1900 to Withdraw Caveats, With Final Relief Also Sought Under S 7 of the Contracts Review Act 1980 / Interlocutory Application Concerning Removal of Caveats

Legal Issues

  1. 1 ['Whether Business Acquisitions Australia Pty Limited had a caveatable equitable interest in the Blacktown land under the Exclusive Mandate to Act.' 'Whether Business Acquisitions Australia Pty Limited had a caveatable equitable interest in the Narrabeen land under clause 7 of the Exclusive Mandate to Act.' 'Whether the contractual conditions for liability to pay brokerage, application, management fees or disbursements, and for a charge over land, had been satisfied.' 'Whether the caveats should be withdrawn under s 74MA of the Real Property Act 1900.']

Ratio Decidendi

The caveat over the Blacktown land could not be maintained because the registered proprietors were not parties to the Exclusive Mandate and there was no evidence that the mandate parties had any interest in that land. The caveat over the Narrabeen land could not be supported because the second defendant did not show that the contractual conditions for the claimed brokerage and other fees, and therefore the charge under clause 7, had been satisfied: the approval obtained was for a materially different loan, any authority to vary the loan was doubtful, and there was no evidence that the required invoice or notice was sent. The caveats were therefore ordered to be removed under s 74MA of the...

Court Disposition

Caveats AD148260T and AD148274G ordered to be removed; second defendant ordered to pay the plaintiffs' costs of the application to remove caveats on the indemnity basis; all other costs reserved.

Orders

  • ['The second defendant remove Caveats AD148260T and AD148274G by 4 pm on the day the reasons are delivered.' "The second defendant pay the plaintiffs' costs of the application to remove caveats on the indemnity basis." 'All other questions of costs are reserved.' "Unless counsel suggest a more appropriate day, the...