Terry v O’Connell [2010] NSWSC 255

Terry v O’Connell [2010] NSWSC 255

The plaintiff failed to establish a serious question to be tried that she is entitled to a charge or equitable mortgage over the land, as her evidence only supports a possible charge over the proceeds of sale, which does not constitute an interest in the land sufficient to support the caveat.

Parties
Plaintiff: Diana Noel Terry; First Defendant: Mellissa Wendy O'Connell; Second Defendant: Mark Peter O'Connell
Jurisdiction
Australia
Judgment Date
26 March 2010
Procedural Posture
Application for Extension of Caveat / Ex Tempore Judgment on Interlocutory Application
Outcome
Relief refused
Legal Topics
Caveats, Equitable Charge, Mortgage, Interest in Land, Proceeds of Sale
Real Property Equity Caveats Equitable Charge Mortgage Interest in Land Proceeds of Sale

Case Brief

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Parties

Diana Noel Terry

Plaintiff

Mellissa Wendy O'Connell

First Defendant

Mark Peter O'Connell

Second Defendant

Procedural Posture

Application for Extension of Caveat / Ex Tempore Judgment on Interlocutory Application

Legal Issues

  1. 1 Whether the plaintiff is entitled to an extension of a caveat based on an asserted equitable charge or mortgage over land
  2. 2 Whether the plaintiff has an interest in the land or only in the proceeds of sale

Ratio Decidendi

The plaintiff failed to establish a serious question to be tried that she is entitled to a charge or equitable mortgage over the land, as her evidence only supports a possible charge over the proceeds of sale, which does not constitute an interest in the land sufficient to support the caveat.

Court Disposition

Relief refused

Orders

  • Refuse the relief in para 3 of the summons
  • Order the plaintiff to pay any costs of the second defendant in relation to the application for the relief in para 3 of the summons