Redman Construction Pty Limited v Tarnap Pty Limited [2005] NSWSC 1011

Redman Construction Pty Limited v Tarnap Pty Limited [2005] NSWSC 1011

Clause 31 of the building contract creates an equitable charge entitling Redman to lodge a caveat, and the balance of convenience favours granting leave to lodge a further caveat; however, leave cannot retrospectively validate a caveat already lodged without leave, so the Court grants leave for Redman to lodge a further caveat subject to the conditions outlined.

Jurisdiction
Australia
Judgment Date
07 October 2005
Procedural Posture
Civil / Interlocutory Application
Outcome
Leave granted to lodge a further caveat; costs in the cause; proceedings stood over for mention.
Legal Topics
['caveats' 'torrens System' 'building Contract' 'equitable Charges']
['property Law' 'civil Procedure'] ['caveats' 'torrens System' 'building Contract' 'equitable Charges']

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Procedural Posture

Civil / Interlocutory Application

Legal Issues

  1. 1 ['Whether a second caveat claiming the same interest as a lapsed caveat is of no effect under Real Property Act s 74O(2)' 'Whether leave to lodge a further caveat can be granted retrospectively under s 74O(2)' 'Whether charging clause in building contract creates a caveatable interest' "Interpretation of 'to the extent that a court or tribunal has made an order' in charging clause" 'Balance of convenience in caveat cases']

Ratio Decidendi

Clause 31 of the building contract creates an equitable charge entitling Redman to lodge a caveat, and the balance of convenience favours granting leave to lodge a further caveat; however, leave cannot retrospectively validate a caveat already lodged without leave, so the Court grants leave for Redman to lodge a further caveat subject to the conditions outlined.

Court Disposition

Leave granted to lodge a further caveat; costs in the cause; proceedings stood over for mention.

Orders

  • ['Plaintiff granted leave to lodge a further caveat over land comprised in Folio Identifier 2/818801 as equitable chargee under clause 31 of the building contract.' 'Defendant reserved leave to apply by notice of motion for removal of that caveat.' 'Proceedings stood over for mention before the Registrar at 9.30 am...