Ageist Pty Limited v More Than Skin Deep Pty Limited [2020] NSWSC 698

Ageist Pty Limited v More Than Skin Deep Pty Limited [2020] NSWSC 698

The defendants failed to establish a serious issue to be tried as to existence of an enforceable equitable interest: the First Contract of Sale was entered into in breach of the mortgage without consent, the purchasers were on notice, the contract was not bona fide, finance was lacking, and even if an issue existed, the balance of convenience overwhelmingly required removal of the caveat given the mortgagee’s lawful sale and need for certainty for the purchaser.

Parties
Plaintiff: Ageist Pty Ltd; First Defendant: More Than Skin Pty Ltd; Second Defendant: Lupco Stojcevski
Jurisdiction
Australia
Judgment Date
22 May 2020
Procedural Posture
Application for Order to Remove Caveat / Judgment and Orders (ex Tempore)
Outcome
Defendants ordered to withdraw caveat; Defendants to pay plaintiff's costs of proceedings.
Legal Topics
Caveats, Mortgagee's Power of Sale, Registered Mortgages, Specific Performance, Equitable Interests in Land, Removal of Caveat
Property Law Equity Caveats Mortgagee's Power of Sale Registered Mortgages Specific Performance Equitable Interests in Land Removal of Caveat

Case Brief

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Parties

Ageist Pty Ltd

Plaintiff

More Than Skin Pty Ltd

First Defendant

Lupco Stojcevski

Second Defendant

Procedural Posture

Application for Order to Remove Caveat / Judgment and Orders (ex Tempore)

Legal Issues

  1. 1 Whether there is a serious question to be tried as to the existence of the interest claimed by caveators under the First Contract of Sale
  2. 2 Whether the First Contract of Sale conferred a specifically enforceable equitable interest
  3. 3 Whether purchasers under the First Contract of Sale were bona fide and on notice of mortgage conditions

Ratio Decidendi

The defendants failed to establish a serious issue to be tried as to existence of an enforceable equitable interest: the First Contract of Sale was entered into in breach of the mortgage without consent, the purchasers were on notice, the contract was not bona fide, finance was lacking, and even if an issue existed, the balance of convenience overwhelmingly required removal of the caveat given the mortgagee’s lawful sale and need for certainty for the purchaser.

Court Disposition

Defendants ordered to withdraw caveat; Defendants to pay plaintiff's costs of proceedings.

Orders

  • Order pursuant to s 74MA Real Property Act 1900 (NSW) that the first and second defendants withdraw caveat AQ73878 lodged in respect of 8 Elswick Street, Leichhardt, NSW.
  • Order that the defendants pay the plaintiff’s costs of the proceedings.