Buchanan & Anor v Crown & Gleeson Business Finance Pty Ltd [2006] NSWSC 1465

Buchanan & Anor v Crown & Gleeson Business Finance Pty Ltd [2006] NSWSC 1465

Although the caveator has a caveatable interest, the balance of convenience favours removal of the caveat to permit refinance as the transaction does not derogate from or adversely affect the caveator's interest, nor does it reduce its priority, and the caveator did not offer an undertaking as to damages.

Jurisdiction
Australia
Judgment Date
31 October 2006
Procedural Posture
Application for Removal of Caveat / Ex Tempore Judgment at First Instance
Outcome
Order that caveat be removed, with leave to lodge further caveat upon completion of refinance.
Legal Topics
['torrens Title' 'caveats Against Dealings' 'refinance and Removal of Caveat' 'priority of Securities']
['real Property'] ['torrens Title' 'caveats Against Dealings' 'refinance and Removal of Caveat' 'priority of Securities']

Case Brief

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Procedural Posture

Application for Removal of Caveat / Ex Tempore Judgment at First Instance

Legal Issues

  1. 1 ['Whether balance of convenience favours removal of a valid caveat to permit refinance where caveatable interest is undisputed' "Whether the removal of the caveat would derogate from the caveator's interest or adversely affect priority" 'Whether an undertaking as to damages is required as condition of maintenance of the caveat']

Ratio Decidendi

Although the caveator has a caveatable interest, the balance of convenience favours removal of the caveat to permit refinance as the transaction does not derogate from or adversely affect the caveator's interest, nor does it reduce its priority, and the caveator did not offer an undertaking as to damages.

Court Disposition

Order that caveat be removed, with leave to lodge further caveat upon completion of refinance.

Orders

  • ['Order that the defendant withdraw caveat AC7815 by 4 pm today.' 'Order that the defendant have leave to lodge a further caveat in respect of the same estate interest or right and purporting to be based on the same facts as caveat AC7815, after the registration of a discharge of mortgage 9931348, a transfer by the...