Hepler v Rosenblum [2005] NSWSC 179

Hepler v Rosenblum [2005] NSWSC 179

The Court declined to order withdrawal of the caveat because there was a serious question to be tried that the defendant had a caveatable interest by way of equitable charge over the remaining Pidcock Street properties, including whether the February 2004 arrangement continued security over those properties and bound the plaintiff, and there was no dispute that the balance of convenience favoured retention of the caveat if such a serious question existed.

Jurisdiction
Australia
Judgment Date
02 March 2005
Procedural Posture
Summons Seeking an Order That a Caveat Be Withdrawn / Return of Summons; Ex Tempore Judgment in Equity Division Duty Judge List
Outcome
Caveat not ordered withdrawn; leave granted to the defendant to file a cross-claim; plaintiff ordered to pay the defendant's costs incurred to date insofar as those costs ultimately prove to have been thrown away.
Legal Topics
['caveats Against Dealings' 'equitable Charge' 'section 54 a Conveyancing Act 1919' 'estoppel' 'quistclose Trust']
['conveyancing' 'equity' 'torrens System'] ['caveats Against Dealings' 'equitable Charge' 'section 54 a Conveyancing Act 1919' 'estoppel' 'quistclose Trust']

Case Brief

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Procedural Posture

Summons Seeking an Order That a Caveat Be Withdrawn / Return of Summons; Ex Tempore Judgment in Equity Division Duty Judge List

Legal Issues

  1. 1 ['Whether there was a serious question to be tried that Ms Hoolahan had an equitable charge over the remaining Pidcock Street properties.' 'Whether the alleged agreement to give security over the Pidcock Street properties was too uncertain.' 'Whether lack of writing prevented reliance on the alleged agreement, including whether estoppel could outflank section 54A Conveyancing Act 1919.' 'Whether the caveat could also be supported by a tracing remedy consequent on breach of a Quistclose trust.' 'Whether the fact that the loan was not presently repayable prevented an equitable charge from existing.']

Ratio Decidendi

The Court declined to order withdrawal of the caveat because there was a serious question to be tried that the defendant had a caveatable interest by way of equitable charge over the remaining Pidcock Street properties, including whether the February 2004 arrangement continued security over those properties and bound the plaintiff, and there was no dispute that the balance of convenience favoured retention of the caveat if such a serious question existed.

Court Disposition

Caveat not ordered withdrawn; leave granted to the defendant to file a cross-claim; plaintiff ordered to pay the defendant's costs incurred to date insofar as those costs ultimately prove to have been thrown away.

Orders

  • ['The Court declined to order that the caveat be withdrawn.' 'Leave was granted to the defendant to file a cross-claim in the form initialled and dated by the Court.' 'The plaintiff was ordered to pay the costs of the defendant incurred to date, insofar as those costs ultimately prove to have been thrown away.']