Sanna v Wyse and Young International Pty Limited & Others (No.2) [2015] NSWSC 581

Sanna v Wyse and Young International Pty Limited & Others (No.2) [2015] NSWSC 581

The defendants would not have been granted interlocutory injunctions to protect the interests claimed in their caveats because none established a prima facie case or serious question that the relevant agreement created a legal or equitable interest in the property. The first and third defendants' caveats were also defective for failing to particularise the nature of the estate or interest claimed. The second defendant's caveat was defective, unsupported by a proprietary interest under the Deed of Loan or General Security Agreement, and was also a further caveat of no effect under s 74O. Each caveat was therefore ordered to be withdrawn and no leave was given to lodge a further caveat.

Jurisdiction
Australia
Judgment Date
18 May 2015
Procedural Posture
Application Under S 74 MA of the Real Property Act 1900 (nsw) for Orders Requiring Withdrawal of Caveats / Principal Judgment; Orders Made for Removal of Caveats
Outcome
Orders made for removal of caveats; defendants ordered to pay the plaintiff's costs of the proceedings.
Legal Topics
['caveats' 'removal of Caveats' 'successive Caveats' 'prima Facie Case or Serious Question' 'interlocutory Injunction' 'caveatable Interests']
['real Property'] ['caveats' 'removal of Caveats' 'successive Caveats' 'prima Facie Case or Serious Question' 'interlocutory Injunction' 'caveatable Interests']

Case Brief

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Procedural Posture

Application Under S 74 MA of the Real Property Act 1900 (nsw) for Orders Requiring Withdrawal of Caveats / Principal Judgment; Orders Made for Removal of Caveats

Legal Issues

  1. 1 ['Whether each caveator would have been granted an interlocutory injunction to protect the interest claimed in its caveat.' 'Whether the caveats sufficiently particularised the estate or interest in land claimed as required by s 74F(5) of the Real Property Act 1900 (NSW) and Schedule 3, cl 7 of the Real Property Regulation 2014 (NSW).' "Whether the first defendant's Retainer/Costs Agreement dated 16 May 2012 gave rise to an interest in the property." "Whether the second defendant's caveat was a further caveat of no effect under s 74O of the Real Property Act 1900 (NSW)." 'Whether the Deed of Loan dated 26 July 2012 or General Security Agreement dated 26 July 2012 gave the second defendant an interest in the property.' 'Whether the Saving Fee Agreement dated 15 December 2011 gave the third defendant an interest in the property.']

Ratio Decidendi

The defendants would not have been granted interlocutory injunctions to protect the interests claimed in their caveats because none established a prima facie case or serious question that the relevant agreement created a legal or equitable interest in the property. The first and third defendants' caveats were also defective for failing to particularise the nature of the estate or interest claimed. The second defendant's caveat was defective, unsupported by a proprietary interest under the Deed of Loan or General Security Agreement, and was also a further caveat of no effect under s 74O. Each caveat was therefore ordered to be withdrawn and no leave was given to lodge a further caveat.

Court Disposition

Orders made for removal of caveats; defendants ordered to pay the plaintiff's costs of the proceedings.

Orders

  • ['The first defendant withdraw caveat AJ286647 in relation to the land contained in Folio Identifier 33/718953 by 4pm on 19 May 2015.' 'The second defendant withdraw caveat AJ286649 in relation to the land contained in Folio Identifier 33/718953 by 4pm on 19 May 2015.' 'The third defendant withdraw caveat AJ286657...