Alanbert Pty Ltd v Bulevi Pty Ltd [1999] NSWSC 237

Alanbert Pty Ltd v Bulevi Pty Ltd [1999] NSWSC 237

The plaintiff was not entitled to notice under s 57(2B)(1)(ii) because its caveat claimed an interest as purchaser under a contract, not on its face as an unregistered mortgagee or chargee. However, the first motion did not warrant indemnity costs or any costs order because an associate of the plaintiff was negotiating to buy lot 12 at a better price than the alternative offer. The second motion did warrant indemnity costs because the plaintiff had no right as against the third defendant to maintain the replacement caveat over lot 11, withdrawal was inevitable, and maintaining it unreasonably forced the third defendant to bring the motion.

Jurisdiction
Australia
Judgment Date
16 March 1999
Procedural Posture
Equity Proceeding Concerning Applications for Withdrawal of Caveats and Costs / Costs Determination on Two Motions by the Third Defendant for Withdrawal of Caveats
Outcome
Application for indemnity costs refused in respect of the first motion but granted in respect of the second motion.
Legal Topics
['torrens System' 'mortgagee Power of Sale' 'caveats' 'notice of Demand' 'indemnity Costs']
['conveyancing' 'real Property' 'civil Procedure'] ['torrens System' 'mortgagee Power of Sale' 'caveats' 'notice of Demand' 'indemnity Costs']

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Procedural Posture

Equity Proceeding Concerning Applications for Withdrawal of Caveats and Costs / Costs Determination on Two Motions by the Third Defendant for Withdrawal of Caveats

Legal Issues

  1. 1 ['Whether the plaintiff caveator was entitled to a copy of the s 57(2B) notice under Real Property Act 1900 s 57(2B)(1)(ii).' "Whether the plaintiff should pay the third defendant's costs of the first motion for withdrawal of caveat on an indemnity basis or at all." "Whether the plaintiff should pay the third defendant's costs of the second motion for withdrawal of caveat on an indemnity basis." 'Whether the first and second defendants should receive costs of the motions from the plaintiff.']

Ratio Decidendi

The plaintiff was not entitled to notice under s 57(2B)(1)(ii) because its caveat claimed an interest as purchaser under a contract, not on its face as an unregistered mortgagee or chargee. However, the first motion did not warrant indemnity costs or any costs order because an associate of the plaintiff was negotiating to buy lot 12 at a better price than the alternative offer. The second motion did warrant indemnity costs because the plaintiff had no right as against the third defendant to maintain the replacement caveat over lot 11, withdrawal was inevitable, and maintaining it unreasonably forced the third defendant to bring the motion.

Court Disposition

Application for indemnity costs refused in respect of the first motion but granted in respect of the second motion.

Orders

  • ['No order for costs in respect of the first motion.' "The plaintiff is to pay the third defendant's costs of the notice of motion for withdrawal of caveat filed on 12 March 1999 on the indemnity basis." "No order as to the first and second defendants' costs of the first motion." "No order as to the first and second...