Perpetual Trustee Company Ltd v English [2011] NSWSC 264

Perpetual Trustee Company Ltd v English [2011] NSWSC 264

The Second Caveat was inadequate in form, failed to properly specify or evidence the claimed interest, and its existence impeded the sale of the property; accordingly, its removal under s 74MA of the Real Property Act 1900 (NSW) was appropriate.

Parties
First Plaintiff: Perpetual Trustee Company Ltd ACN 000 001 007; Second Plaintiff: Challenger Managed Investments Ltd ACN 002 835 592; First Defendant: Trent English; Second Defendant: T-Networks Pty Ltd ACN 090 591 950
Jurisdiction
Australia
Judgment Date
23 March 2011
Procedural Posture
Application for Removal of Caveat / Principal Judgment
Outcome
Second caveat to be withdrawn; plaintiffs awarded costs on the usual basis.
Legal Topics
Removal of Caveat, Costs
Real Property Removal of Caveat Costs

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Parties

Perpetual Trustee Company Ltd ACN 000 001 007

First Plaintiff

Challenger Managed Investments Ltd ACN 002 835 592

Second Plaintiff

Trent English

First Defendant

T-Networks Pty Ltd ACN 090 591 950

Second Defendant

Procedural Posture

Application for Removal of Caveat / Principal Judgment

Legal Issues

  1. 1 Whether the Second Caveat lodged on the property is inadequate in form and should be removed under s 74MA of the Real Property Act 1900 (NSW)
  2. 2 Whether the first defendant should pay plaintiffs’ costs and on what basis

Ratio Decidendi

The Second Caveat was inadequate in form, failed to properly specify or evidence the claimed interest, and its existence impeded the sale of the property; accordingly, its removal under s 74MA of the Real Property Act 1900 (NSW) was appropriate.

Court Disposition

Second caveat to be withdrawn; plaintiffs awarded costs on the usual basis.

Orders

  • Order under s 74MA of the Real Property Act 1900 (NSW) that the second defendant provide a withdrawal of caveat registered AG 116427 lodged on Title Folio 136/SP75167 for the land in Lot 136 in Strata Plan 75167 known as Suite 407, 250 Pitt St, Sydney NSW 2000 by 10am on 25 March 2011.
  • First defendant to pay the plaintiffs' costs on the usual basis.