Babies Galore v Kelso Builders Supplies [2006] NSWSC 353

Babies Galore v Kelso Builders Supplies [2006] NSWSC 353

The caveat was extended because the plaintiff had a caveatable and prima facie enforceable interest as lessee under the renewed lease, the second defendant's mortgagee rights appeared subject to that interest, registration of a transfer to the purchaser could jeopardise the plaintiff's unregistered interest, and the balance of convenience favoured maintaining the caveat, particularly as the sale was entered into before the lease registration issue was resolved and the plaintiff gave the usual undertaking as to damages.

Jurisdiction
Australia
Judgment Date
20 April 2006
Procedural Posture
Application Under S 74 K(2) of the Real Property Act 1900 (nsw) to Extend the Operation of a Caveat / Duty Judge List Application
Outcome
Application granted.
Legal Topics
['caveats' 'renewal of Lease' 'mortgagee in Possession Power of Sale' 'balance of Convenience']
['real Property'] ['caveats' 'renewal of Lease' 'mortgagee in Possession Power of Sale' 'balance of Convenience']

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Procedural Posture

Application Under S 74 K(2) of the Real Property Act 1900 (nsw) to Extend the Operation of a Caveat / Duty Judge List Application

Legal Issues

  1. 1 ["Whether the plaintiff's caveat protecting its rights and interests under an unregistered renewed lease should be extended under s 74K(2) of the Real Property Act 1900 (NSW)." "Whether the balance of convenience favoured maintaining the caveat despite the second defendant's contract for sale as mortgagee in possession."]

Ratio Decidendi

The caveat was extended because the plaintiff had a caveatable and prima facie enforceable interest as lessee under the renewed lease, the second defendant's mortgagee rights appeared subject to that interest, registration of a transfer to the purchaser could jeopardise the plaintiff's unregistered interest, and the balance of convenience favoured maintaining the caveat, particularly as the sale was entered into before the lease registration issue was resolved and the plaintiff gave the usual undertaking as to damages.

Court Disposition

Application granted.

Orders

  • ['Upon the plaintiff, by its counsel, giving the usual undertaking as to damages, the operation of caveat number AC105449 lodged on registered folio 1/784812 is extended until further order pursuant to subs 74K(2) of the Real Property Act.' 'The order may be entered forthwith.' "The costs of the application will be...