Antar v Fairchild Development Pty Ltd (R&M App) & Ors [2008] NSWSC 638

Antar v Fairchild Development Pty Ltd (R&M App) & Ors [2008] NSWSC 638

The caveat should be extended because there were serious questions to be tried as to the existence and enforceability of the Plaintiff's agreement for lease, whether the Fairchild-Northaxis contract was subject to that tenancy, and whether the Bank presently had any right under s 53(4) of the Real Property Act 1900 (NSW) to invalidate the claimed lease where the Receivers were acting as Fairchild's agents to enforce a pre-appointment contract rather than the Bank directly exercising its power of sale. The Bank's application for withdrawal was premature and the balance of convenience favoured maintaining the caveat while those issues were determined.

Jurisdiction
Australia
Judgment Date
16 June 2008
Procedural Posture
Caveat Extension and Withdrawal Applications / Notices of Motion
Outcome
Caveat extended until further order; Fourth Defendant's motion dismissed.
Legal Topics
['extension of Caveat' 'caveatable Interest' 'agreement for Lease' 'mortgagee Consent to Lease' 'power of Sale' 'balance of Convenience']
['property Law' 'equity' 'real Property' 'mortgage Law'] ['extension of Caveat' 'caveatable Interest' 'agreement for Lease' 'mortgagee Consent to Lease' 'power of Sale' 'balance of Convenience']

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Procedural Posture

Caveat Extension and Withdrawal Applications / Notices of Motion

Legal Issues

  1. 1 ['Whether the Plaintiff had an arguable or prima facie claim to the leasehold interest protected by the caveat.' 'Whether the balance of convenience favoured extending the caveat or ordering its withdrawal.' "Whether s 53(4) of the Real Property Act 1900 (NSW) invalidated the Plaintiff's alleged leasehold interest as against the Bank." "Whether the contract between Fairchild and Northaxis was subject to the Plaintiff's alleged tenancy." "Whether the contract between Fairchild and Northaxis was made in exercise of the Bank's power of sale or merely adopted by the Bank and the Receivers."]

Ratio Decidendi

The caveat should be extended because there were serious questions to be tried as to the existence and enforceability of the Plaintiff's agreement for lease, whether the Fairchild-Northaxis contract was subject to that tenancy, and whether the Bank presently had any right under s 53(4) of the Real Property Act 1900 (NSW) to invalidate the claimed lease where the Receivers were acting as Fairchild's agents to enforce a pre-appointment contract rather than the Bank directly exercising its power of sale. The Bank's application for withdrawal was premature and the balance of convenience favoured maintaining the caveat while those issues were determined.

Court Disposition

Caveat extended until further order; Fourth Defendant's motion dismissed.

Orders

  • ['Upon the Plaintiff by his counsel giving the usual undertaking as to damages, order made in terms of paragraph 7 of the Plaintiff\'s Amended Notice of Motion, varied by deleting the words "the hearing of these proceedings" and substituting "further order of the Court".' "The Fourth Defendant pay the Plaintiff's...