Bonheur Holdings Pty Ltd v Mercia Financial Solutions Pty Ltd [2018] NSWSC 1962

Bonheur Holdings Pty Ltd v Mercia Financial Solutions Pty Ltd [2018] NSWSC 1962

Because the plaintiff faced a real risk of NAB enforcement, loss of refinancing, inability to register the strata plan and complete sales, and possible project failure if the caveat remained, while Mercia gave no evidence of the value of its undertaking as to damages and was offered alternative security over the Rozelle property with equity exceeding its asserted claim plus personal covenants from Dr Nellore and Ms Vasan, the balance of convenience strongly favoured ordering Mercia to withdraw the Bellevue Hill caveat upon delivery of the executed deed of charge.

Jurisdiction
Australia
Judgment Date
14 December 2018
Procedural Posture
Application to Remove Caveat Pursuant to S 74 MA of the Real Property Act 1900 (nsw) / Duty List Principal Judgment Giving Reasons for Orders Made on 12 December 2018
Outcome
The first defendant was ordered to provide a duly executed Withdrawal of Caveat in registrable form upon delivery of the executed deed of charge, and later ordered to pay the plaintiff's costs.
Legal Topics
['caveats' 'removal of Caveat' 'caveatable Interest' 'balance of Convenience' 'alternative Security' 'costs']
['land Law' 'equity' 'real Property'] ['caveats' 'removal of Caveat' 'caveatable Interest' 'balance of Convenience' 'alternative Security' 'costs']

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Procedural Posture

Application to Remove Caveat Pursuant to S 74 MA of the Real Property Act 1900 (nsw) / Duty List Principal Judgment Giving Reasons for Orders Made on 12 December 2018

Legal Issues

  1. 1 ["Whether the first defendant should be ordered under s 74MA of the Real Property Act 1900 (NSW) to withdraw Caveat AN888221 lodged over the plaintiff's Bellevue Hill property." "Whether the balance of convenience favoured withdrawal of the caveat where a serious question to be tried as to the first defendant's caveatable interest was accepted." "Whether alternative security over the Rozelle property adequately protected the first defendant's asserted claim."]

Ratio Decidendi

Because the plaintiff faced a real risk of NAB enforcement, loss of refinancing, inability to register the strata plan and complete sales, and possible project failure if the caveat remained, while Mercia gave no evidence of the value of its undertaking as to damages and was offered alternative security over the Rozelle property with equity exceeding its asserted claim plus personal covenants from Dr Nellore and Ms Vasan, the balance of convenience strongly favoured ordering Mercia to withdraw the Bellevue Hill caveat upon delivery of the executed deed of charge.

Court Disposition

The first defendant was ordered to provide a duly executed Withdrawal of Caveat in registrable form upon delivery of the executed deed of charge, and later ordered to pay the plaintiff's costs.

Orders

  • ['The Court noted the undertaking by Rajesh Nellore and Revathi Vasan to execute a deed of charge in favour of the first defendant in the form of Exhibit B.' 'The Court noted the undertaking by Rajesh Nellore and Revathi Vasan not to dispose of or further encumber their property at 86 Terry Street, Rozelle NSW...