Biseja Pty Ltd v NSI Goup Pty Ltd [2006] NSWSC 1331

Biseja Pty Ltd v NSI Goup Pty Ltd [2006] NSWSC 1331

Regardless of whether the correct construction of the parties' agreement allowed the defendant to lodge caveats as soon as any mortgage was registered or only after all refinancings had occurred, the balance of convenience lay overwhelmingly in favour of removing the caveats to allow the registration of the mortgage to the refinancier. The agreement was intended to facilitate refinancing unimpeded by caveats, and to allow the defendant to lodge caveats only after mortgages required by the refinancers had been registered, provided that was within three months. Any loss of priority suffered by the defendant was not intended to be avoided by the agreement or the lodging of caveats at this...

Parties
Plaintiff: Biseja Pty Ltd; Defendant: NSI Goup Pty Ltd
Jurisdiction
Australia
Judgment Date
22 September 2006
Procedural Posture
Application for Withdrawal of Caveats / Hearing of Motion, Ex Tempore Judgment
Outcome
Caveats ordered to be withdrawn; leave granted to lodge further caveats following registration of mortgage; costs awarded to plaintiff.
Legal Topics
Caveats, Torrens Title, Project Management Agreements, Refinancing, Balance of Convenience
Real Property Equity Caveats Torrens Title Project Management Agreements Refinancing Balance of Convenience

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Parties

Biseja Pty Ltd

Plaintiff

NSI Goup Pty Ltd

Defendant

Procedural Posture

Application for Withdrawal of Caveats / Hearing of Motion, Ex Tempore Judgment

Legal Issues

  1. 1 Whether defendant should be ordered to withdraw caveats over certain lots under s 74MA of the Real Property Act 1900 (NSW)
  2. 2 Whether agreement between parties permitted defendant to lodge caveats
  3. 3 Balance of convenience in maintaining or withdrawing caveats

Ratio Decidendi

Regardless of whether the correct construction of the parties' agreement allowed the defendant to lodge caveats as soon as any mortgage was registered or only after all refinancings had occurred, the balance of convenience lay overwhelmingly in favour of removing the caveats to allow the registration of the mortgage to the refinancier. The agreement was intended to facilitate refinancing unimpeded by caveats, and to allow the defendant to lodge caveats only after mortgages required by the refinancers had been registered, provided that was within three months. Any loss of priority suffered by the defendant was not intended to be avoided by the agreement or the lodging of caveats at this...

Court Disposition

Caveats ordered to be withdrawn; leave granted to lodge further caveats following registration of mortgage; costs awarded to plaintiff.

Orders

  • Order, pursuant to Real Property Act, s 74MA, that the defendant forthwith withdraw caveat AC519316, caveat AC519374 and caveat AC519366 in respect of lots 79, 80 and 81 respectively in Strata Plan 70843.
  • Order, pursuant to Real Property Act, s 74O, that the defendant have leave to lodge fresh caveats over lots 79, 80 and 81 in Strata Plan 76449 claiming the same interest as those claimed in caveats AC519316, AC519374 and AC519366 upon and following registration of a mortgage by the plaintiff to Australian Executor...