Gillies v Forrest & Ors [2014] NSWSC 408

Gillies v Forrest & Ors [2014] NSWSC 408

The caveat was ordered to be removed because the plaintiff's prospects of establishing the claimed interests were very low in light of his 2006 bankruptcy, there was no material demonstrating that the bank's mortgage rights were subordinated to his claimed interest, there was no proper material showing the proposed sales were at an under value, and the balance of convenience overwhelmingly favoured allowing the sales to proceed.

Jurisdiction
Australia
Judgment Date
04 April 2014
Procedural Posture
Interlocutory Applications / Applications by the First and Second Defendants and by the Third Defendant for Removal of the Plaintiff's Caveat Under S 74 MA of the Real Property Act 1900 (nsw).
Outcome
Applications granted in substance; the plaintiff was ordered to withdraw the caveat, the Registrar-General was directed to remove it if necessary, the plaintiff was restrained from lodging further caveats on the properties without leave, related matters were stood over, subpoena leave was granted, and costs were...
Legal Topics
['removal of Caveat' 'equitable Interest in Land' 'interlocutory Injunction Considerations' 'balance of Convenience' 'bankruptcy Vesting of Interests' 'registered Mortgage']
['property Law' 'civil Procedure' 'bankruptcy'] ['removal of Caveat' 'equitable Interest in Land' 'interlocutory Injunction Considerations' 'balance of Convenience' 'bankruptcy Vesting of Interests' 'registered Mortgage']

Case Brief

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Procedural Posture

Interlocutory Applications / Applications by the First and Second Defendants and by the Third Defendant for Removal of the Plaintiff's Caveat Under S 74 MA of the Real Property Act 1900 (nsw).

Legal Issues

  1. 1 ["Whether the plaintiff's caveat over the two Anna Bay properties should be removed under s 74MA of the Real Property Act 1900 (NSW)." 'Whether the plaintiff had an equitable interest in the properties capable of supporting the caveat.' "Whether the plaintiff's 2006 bankruptcy affected any claimed interest in the properties." 'Whether the balance of convenience favoured maintaining the caveat or allowing the sales of the properties to proceed.']

Ratio Decidendi

The caveat was ordered to be removed because the plaintiff's prospects of establishing the claimed interests were very low in light of his 2006 bankruptcy, there was no material demonstrating that the bank's mortgage rights were subordinated to his claimed interest, there was no proper material showing the proposed sales were at an under value, and the balance of convenience overwhelmingly favoured allowing the sales to proceed.

Court Disposition

Applications granted in substance; the plaintiff was ordered to withdraw the caveat, the Registrar-General was directed to remove it if necessary, the plaintiff was restrained from lodging further caveats on the properties without leave, related matters were stood over, subpoena leave was granted, and costs were...

Orders

  • ['Order pursuant to s 74MA of the Real Property Act 1900 (NSW) that, by 4.30pm on Friday, 11.04.14, the plaintiff do all things necessary to withdraw the caveat with registered dealing number AH260469N lodged in relation to folio identifier 51/1188999, known as 219 Gan Gan Road, Anna Bay, and folio identifier...