Coopharpash Pty Ltd v Carroll [2017] NSWSC 1386

Coopharpash Pty Ltd v Carroll [2017] NSWSC 1386

The caveat was not extended because it was bad on its face, disclosed no facts supporting the claimed resulting or constructive trust, and named Mr Collins although the evidence showed the relevant lender and any proper caveator was the Company. Leave under s. 74O(2) was unnecessary because any further caveat would not be lodged by the same caveator. The freezing order was refused because the evidence did not establish a sufficient threat of dissipation or risk of stultifying judgment, and refinancing to pursue a venture intended to repay the loan did not justify asset preservation relief.

Jurisdiction
Australia
Judgment Date
10 October 2017
Procedural Posture
Application for Extension of Caveat Or, Alternatively, Freezing Orders / Interlocutory Application in the Equity Duty List
Outcome
Applications dismissed
Legal Topics
['torrens Title Caveat' 'extension of Caveat' 'resulting Trust' 'constructive Trust' 'freezing Order' 'asset Preservation Order' 'loan Recovery']
['real Property' 'equity' 'contract'] ['torrens Title Caveat' 'extension of Caveat' 'resulting Trust' 'constructive Trust' 'freezing Order' 'asset Preservation Order' 'loan Recovery']

Case Brief

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Procedural Posture

Application for Extension of Caveat Or, Alternatively, Freezing Orders / Interlocutory Application in the Equity Duty List

Legal Issues

  1. 1 ['Whether the caveat should be extended under s. 74F of the Real Property Act 1900 (NSW).' 'Whether leave was required under s. 74O(2) of the Real Property Act 1900 (NSW) for the Company to lodge and maintain a further caveat.' 'Whether a freezing order should be made restraining the defendants from disposing of, dealing with, or diminishing the value of the Property.' 'Whether there was a serious question to be tried that the plaintiffs had a proprietary interest in the Property by resulting or constructive trust.']

Ratio Decidendi

The caveat was not extended because it was bad on its face, disclosed no facts supporting the claimed resulting or constructive trust, and named Mr Collins although the evidence showed the relevant lender and any proper caveator was the Company. Leave under s. 74O(2) was unnecessary because any further caveat would not be lodged by the same caveator. The freezing order was refused because the evidence did not establish a sufficient threat of dissipation or risk of stultifying judgment, and refinancing to pursue a venture intended to repay the loan did not justify asset preservation relief.

Court Disposition

Applications dismissed

Orders

  • ['Paragraphs 1 and 2 of the summons are dismissed.' "The plaintiffs' notice of motion dated 10 October 2017 is dismissed." "The plaintiffs are to pay the defendants' costs of the proceedings up to and including today." 'The Summons is stood over for directions before the Duty Judge at 10am on Friday 13 October 2017.']