Australian Security Estates Pty Ltd v Bluecrest Holdings Pty Ltd [1999] NSWSC 524

Australian Security Estates Pty Ltd v Bluecrest Holdings Pty Ltd [1999] NSWSC 524

Although the Court generally starts with a bias towards requiring a caveator to provide an undertaking as to damages, the discretion should not be exercised that way here because there was an arguable case that the liquidation was at least partly caused by the underlying dispute between the parties, the plaintiff had not quantified or illustrated the damage feared, and an undertaking had been proffered to release units progressively for proper purposes so as to meet most practical problems before the underlying dispute was resolved.

Jurisdiction
Australia
Judgment Date
21 May 1999
Procedural Posture
Application Concerning Continuation of Caveats Under Part 7 a of the Real Property Act 1900 / Plaintiff Sought an Order That Continuation of Caveats Be Preserved Only If an Undertaking as to Damages Was Given or Secured
Outcome
Application dismissed with costs including reserved costs.
Legal Topics
['torrens System' 'caveats' 'undertaking as to Damages' 'real Property Act 1900 (nsw) Part 7 A' 'discretion to Extend Caveat']
['property Law' 'conveyancing' 'equity'] ['torrens System' 'caveats' 'undertaking as to Damages' 'real Property Act 1900 (nsw) Part 7 A' 'discretion to Extend Caveat']

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Procedural Posture

Application Concerning Continuation of Caveats Under Part 7 a of the Real Property Act 1900 / Plaintiff Sought an Order That Continuation of Caveats Be Preserved Only If an Undertaking as to Damages Was Given or Secured

Legal Issues

  1. 1 ["Whether continuation of the first defendant's caveats should be conditional on an undertaking as to damages" 'Whether any undertaking as to damages should be required from the liquidator personally or secured by a bank guarantee' 'How the Court should exercise its discretion under section 74K of the Real Property Act 1900 when extending caveats']

Ratio Decidendi

Although the Court generally starts with a bias towards requiring a caveator to provide an undertaking as to damages, the discretion should not be exercised that way here because there was an arguable case that the liquidation was at least partly caused by the underlying dispute between the parties, the plaintiff had not quantified or illustrated the damage feared, and an undertaking had been proffered to release units progressively for proper purposes so as to meet most practical problems before the underlying dispute was resolved.

Court Disposition

Application dismissed with costs including reserved costs.

Orders

  • ['Application dismissed with costs including reserved costs.' 'Same order in suit 4639 of 1998.']