Hanson Construction Materials Pty Ltd v Roberts [2016] NSWSC 989

Hanson Construction Materials Pty Ltd v Roberts [2016] NSWSC 989

The caveat should be removed only to the extent necessary to enable Mrs Roberts to refinance, on the condition that she consents to a further caveat being immediately lodged in favour of Hanson on the same terms, preserving Hanson's priority and security; the balance of convenience favours allowing the refinance with this protection for the caveator, particularly given the serious question as to whether Mrs Roberts signed the relevant agreement.

Parties
Plaintiff/respondent: Hanson Construction Materials Pty Ltd; Defendant/applicant: Elaine Therese Roberts
Jurisdiction
Australia
Judgment Date
14 July 2016
Procedural Posture
Real Property Caveat / Interlocutory Application (duty List)
Outcome
Plaintiff's caveat to be removed to enable refinance on condition defendant consents to further caveat being lodged in same terms immediately on refinance
Legal Topics
Caveats, Refinance, Forgery of Signature, Priority of Interests
Real Property Equity Caveats Refinance Forgery of Signature Priority of Interests

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Parties

Hanson Construction Materials Pty Ltd

Plaintiff/respondent

Elaine Therese Roberts

Defendant/applicant

Procedural Posture

Real Property Caveat / Interlocutory Application (duty List)

Legal Issues

  1. 1 Whether the caveat lodged by Hanson Construction Materials Pty Ltd should be removed to allow the defendant to refinance property
  2. 2 Whether the plaintiff has a caveatable interest in the property by reason of a guarantee allegedly signed by the defendant
  3. 3 What effect removal and relodging of a caveat has on priorities and equitable interests

Ratio Decidendi

The caveat should be removed only to the extent necessary to enable Mrs Roberts to refinance, on the condition that she consents to a further caveat being immediately lodged in favour of Hanson on the same terms, preserving Hanson's priority and security; the balance of convenience favours allowing the refinance with this protection for the caveator, particularly given the serious question as to whether Mrs Roberts signed the relevant agreement.

Court Disposition

Plaintiff's caveat to be removed to enable refinance on condition defendant consents to further caveat being lodged in same terms immediately on refinance

Orders

  • Counsel invited to bring in short minutes to give effect to the reasons; orders to be made removing Hanson's caveat to allow Mrs Roberts to refinance, conditional upon Hanson's immediate relodging of caveat.