Kim v Anwar [2021] NSWSC 930

Kim v Anwar [2021] NSWSC 930

The defendant failed to show a serious question to be tried as to the existence of a charge over the property; there was no evidence of an agreement or advance creating such charge. Even if a serious question arose, the balance of convenience strongly favoured removal of the caveat to allow completion of the contract for sale. The caveat was lodged for improper purposes with the consent of the first plaintiff, amounting to an abuse of the caveat system. Therefore, the court orders the caveat to be withdrawn and no order as to costs, each party bearing their own costs.

Jurisdiction
Australia
Judgment Date
28 July 2021
Procedural Posture
Equity / Application to Withdraw Caveat Under S 74 MA of Real Property Act 1900 (nsw)
Outcome
Caveat ordered to be withdrawn; no order as to costs.
Legal Topics
['caveats' 'extension or Removal of Caveats' 'interest in Land' 'costs']
['land Law' 'equity'] ['caveats' 'extension or Removal of Caveats' 'interest in Land' 'costs']

Case Brief

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Procedural Posture

Equity / Application to Withdraw Caveat Under S 74 MA of Real Property Act 1900 (nsw)

Legal Issues

  1. 1 ["Whether the defendant had a genuine caveatable interest (charge) in the plaintiffs' property justifying maintenance of the caveat" 'Whether the balance of convenience favoured removal of the caveat' 'Whether costs should be awarded given circumstances of caveat lodgement']

Ratio Decidendi

The defendant failed to show a serious question to be tried as to the existence of a charge over the property; there was no evidence of an agreement or advance creating such charge. Even if a serious question arose, the balance of convenience strongly favoured removal of the caveat to allow completion of the contract for sale. The caveat was lodged for improper purposes with the consent of the first plaintiff, amounting to an abuse of the caveat system. Therefore, the court orders the caveat to be withdrawn and no order as to costs, each party bearing their own costs.

Court Disposition

Caveat ordered to be withdrawn; no order as to costs.

Orders

  • ['Pursuant to s 74MA of the Real Property Act 1900 (NSW), caveat AR113232 to be withdrawn by the defendant by 11:00am on 29 July 2021.' 'No order as to costs; each party bear their own costs of the proceedings.']