Coast Reo Pty Ltd v O’Brien & Ors [2006] NSWSC 613

Coast Reo Pty Ltd v O’Brien & Ors [2006] NSWSC 613

It was highly arguable that paragraph (o) of the Supply Agreement created a charge by Mr O'Brien over his interest in real estate and that his signature evidenced personal assent, but the existing caveats were possibly invalid because their form did not accurately describe the limited interest claimed over co-owned land. The appropriate course was to let the existing caveats lapse and grant the Plaintiff leave under s.74O(2) to lodge substitute caveats in proper form.

Jurisdiction
Australia
Judgment Date
15 June 2006
Procedural Posture
Application to Extend the Operation of Caveats Over Real Estate / Ex Tempore Judgment
Outcome
Leave to lodge further caveats granted.
Legal Topics
['caveats' 'caveatable Interest' 'charging Clause' 'real Property Act 1900 (nsw) S 74 O(2)' 'leave to Lodge Further Caveat']
['property Law' 'equity'] ['caveats' 'caveatable Interest' 'charging Clause' 'real Property Act 1900 (nsw) S 74 O(2)' 'leave to Lodge Further Caveat']

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Procedural Posture

Application to Extend the Operation of Caveats Over Real Estate / Ex Tempore Judgment

Legal Issues

  1. 1 ["Whether paragraph (o) of the Commercial Credit Facility and Supply Agreement was capable of creating a charge over Mr O'Brien's interest in land." "Whether Mr O'Brien executed the Agreement in his personal capacity so as to be bound by the charging clause." "Whether the caveats were bad in form because they appeared to claim an interest over the whole of co-owned parcels rather than only Mr O'Brien's interest." 'Whether leave should be granted under s.74O(2) of the Real Property Act 1900 (NSW) to lodge substitute caveats.']

Ratio Decidendi

It was highly arguable that paragraph (o) of the Supply Agreement created a charge by Mr O'Brien over his interest in real estate and that his signature evidenced personal assent, but the existing caveats were possibly invalid because their form did not accurately describe the limited interest claimed over co-owned land. The appropriate course was to let the existing caveats lapse and grant the Plaintiff leave under s.74O(2) to lodge substitute caveats in proper form.

Court Disposition

Leave to lodge further caveats granted.

Orders

  • ['The present caveats are to lapse.' 'The Plaintiff is granted leave immediately to lodge substitute caveats in proper form.']