Boral Recycling v Wake [2009] NSWSC 712

Boral Recycling v Wake [2009] NSWSC 712

Clause 9 could sustain the caveat only if it operated in equity as a mortgage or charge, but on that basis it was a mortgage for the purposes of s 205 of the Duties Act 1997 and was required to be stamped. Because no duty had been paid, s 211 made it unenforceable, and the caveatable interest had to be assessed by reference to the caveat lodged. With no enforceable mortgage or charge and no other source of caveatable interest, the caveat was bad and should not be extended.

Jurisdiction
Australia
Judgment Date
21 July 2009
Procedural Posture
Application to Extend the Operation of a Caveat Lodged Against the Title of Two Parcels of Land / Ex Tempore Judgment in the Equity Division
Outcome
Application refused; proceedings dismissed with costs.
Legal Topics
['caveatable Interest' 'agreement to Mortgage or Charge' 'unstamped Mortgage' 'enforceability Under the Duties Act 1997' 'extension of Caveat']
['real Property' 'equity' 'duties and Stamp Duty'] ['caveatable Interest' 'agreement to Mortgage or Charge' 'unstamped Mortgage' 'enforceability Under the Duties Act 1997' 'extension of Caveat']

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Procedural Posture

Application to Extend the Operation of a Caveat Lodged Against the Title of Two Parcels of Land / Ex Tempore Judgment in the Equity Division

Legal Issues

  1. 1 ["Whether clause 9 of the guarantee and indemnity created a caveatable interest by operating in equity as a mortgage or charge over the defendants' real estate." 'Whether the unstamped guarantee and indemnity was unenforceable under s 211 of the Duties Act 1997 and therefore incapable of sustaining the caveat.' 'Whether standing the proceedings down to permit stamping of the document would cure the defect for the purposes of extending the caveat.']

Ratio Decidendi

Clause 9 could sustain the caveat only if it operated in equity as a mortgage or charge, but on that basis it was a mortgage for the purposes of s 205 of the Duties Act 1997 and was required to be stamped. Because no duty had been paid, s 211 made it unenforceable, and the caveatable interest had to be assessed by reference to the caveat lodged. With no enforceable mortgage or charge and no other source of caveatable interest, the caveat was bad and should not be extended.

Court Disposition

Application refused; proceedings dismissed with costs.

Orders

  • ['The proceedings are dismissed with costs.']