The Trust Company (PTAL) Limited v Berry [2012] NSWSC 1260

The Trust Company (PTAL) Limited v Berry [2012] NSWSC 1260

There was no relevant laches or acquiescence by the second defendant, Mrs Anstee, as she put the plaintiffs on notice of the deficiency in the s 57(2)(b) notice prior to sale. The plaintiffs were aware of the caveat and the lack of power to sell the property, and proceeded anyway. The statutory requirements for the exercise of the power of sale were not met, and there was no basis to remove the caveat under s 74MA. The motion must therefore be dismissed.

Parties
First Plaintiff: The Trust Company (PTAL) Limited [ACN 008 412 913]; Second Plaintiff: Sydney Wyde Mortgage Management Limited [ACN 090 567 150]; First Defendant: Harold Thomas Lewis Berry; Second Defendant: Lynette Mavis Anstee; Third Defendant: Anthony Paul Cole; Fourth Defendant: Frances Margaret Cole; Fifth Defendant: CD Chenoweth & Associates Pty Limited [ACN 054 791 892]; Sixth Defendant: Colin Douglas Chenoweth
Jurisdiction
Australia
Judgment Date
19 October 2012
Procedural Posture
Motion / Decision on Motion (removal of Caveats)
Outcome
Motion dismissed
Legal Topics
Caveats Against Dealings, Removal of Caveat, Mortgagee's Power of Sale, Real Property Procedure
Property Law Civil Procedure Caveats Against Dealings Removal of Caveat Mortgagee's Power of Sale Real Property Procedure

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Parties

The Trust Company (PTAL) Limited [ACN 008 412 913]

First Plaintiff

Sydney Wyde Mortgage Management Limited [ACN 090 567 150]

Second Plaintiff

Harold Thomas Lewis Berry

First Defendant

Lynette Mavis Anstee

Second Defendant

Anthony Paul Cole

Third Defendant

Frances Margaret Cole

Fourth Defendant

CD Chenoweth & Associates Pty Limited [ACN 054 791 892]

Fifth Defendant

Colin Douglas Chenoweth

Sixth Defendant

Procedural Posture

Motion / Decision on Motion (removal of Caveats)

Legal Issues

  1. 1 Whether the caveats lodged by the second defendant should be removed under s 74MA of the Real Property Act 1900
  2. 2 Whether the second defendant was entitled to maintain her caveat after serving notice of invalidity on the plaintiffs
  3. 3 Whether the principle of laches barred the caveator from resisting the removal application

Ratio Decidendi

There was no relevant laches or acquiescence by the second defendant, Mrs Anstee, as she put the plaintiffs on notice of the deficiency in the s 57(2)(b) notice prior to sale. The plaintiffs were aware of the caveat and the lack of power to sell the property, and proceeded anyway. The statutory requirements for the exercise of the power of sale were not met, and there was no basis to remove the caveat under s 74MA. The motion must therefore be dismissed.

Court Disposition

Motion dismissed

Orders

  • The motion is dismissed.
  • Costs of the motion ordered in favour of Mrs Anstee as agreed or assessed, unless application to be heard within 14 days.