Walker v Australian Forestry Holdings Pty Ltd [2018] NSWSC 1535

Walker v Australian Forestry Holdings Pty Ltd [2018] NSWSC 1535

Leave to lodge a further caveat should be refused as the balance of convenience favours the registered proprietor, AFH, given risk to financing arrangements put in place in accordance with prior consent orders and absence of necessary intimation by the Walkers at the time of withdrawal; AFH's application for costs regarding extension of time for expert evidence should be defendant's costs in the cause, given resistance and delay by the Walkers.

Parties
First Plaintiff: Stanley Roy Walker; Second Plaintiff: Jacqueline Mary Walker; Defendant: Australian Forestry Holdings Pty Ltd
Jurisdiction
Australia
Judgment Date
12 October 2018
Procedural Posture
Application for Leave to Lodge Further Caveat; Costs Application / Interlocutory Ruling
Outcome
Application for leave to lodge further caveat dismissed with costs; costs of extension of time to serve expert evidence to be defendant's costs in the cause.
Legal Topics
Caveats, Equitable Mortgage, Interlocutory Relief, Costs
Equity Land Law Caveats Equitable Mortgage Interlocutory Relief Costs

Case Brief

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Parties

Stanley Roy Walker

First Plaintiff

Jacqueline Mary Walker

Second Plaintiff

Australian Forestry Holdings Pty Ltd

Defendant

Procedural Posture

Application for Leave to Lodge Further Caveat; Costs Application / Interlocutory Ruling

Legal Issues

  1. 1 Whether leave should be granted for the lodging of a further caveat over the Braidwood property claiming the same estate or interest as an earlier caveat withdrawn on 3 May 2018
  2. 2 Whether the defendant should have its costs for the application for an extension of time to serve expert evidence

Ratio Decidendi

Leave to lodge a further caveat should be refused as the balance of convenience favours the registered proprietor, AFH, given risk to financing arrangements put in place in accordance with prior consent orders and absence of necessary intimation by the Walkers at the time of withdrawal; AFH's application for costs regarding extension of time for expert evidence should be defendant's costs in the cause, given resistance and delay by the Walkers.

Court Disposition

Application for leave to lodge further caveat dismissed with costs; costs of extension of time to serve expert evidence to be defendant's costs in the cause.

Orders

  • Dismiss with costs the application by the plaintiffs for leave to lodge a further caveat over the Braidwood property (namely, the land contained in certificates of title folio identifiers 328/755911, 326/755911, 329/755911 and Auto Consol 15246-77) claiming the same estate or interest as that set out in an earlier...
  • Order that the costs of the application by the defendant for an extension of time to serve its expert evidence be the defendant's costs in the cause.