Everbow Pty Ltd & Anor v Goodwin [2006] NSWSC 360

Everbow Pty Ltd & Anor v Goodwin [2006] NSWSC 360

Because the plaintiffs had executed notices of withdrawal of caveat to be used upon settlement of the mortgagee sale, any extension would be followed by extinguishment when the withdrawal was used. The asserted effect on priority was not established on the material before the court, so there was little utility in extending the caveat and the discretion to extend it should be refused.

Jurisdiction
Australia
Judgment Date
26 April 2006
Procedural Posture
Application to Extend the Operation of a Caveat Under S 74 K of the Real Property Act 1900 / Ex Tempore Judgment on Notice of Motion
Outcome
Notice of motion dismissed with costs.
Legal Topics
['torrens Title' 'caveats Against Dealings' 'withdrawal of Caveat' 'mortgagee Sale' 'extension of Caveat']
['conveyancing' 'real Property'] ['torrens Title' 'caveats Against Dealings' 'withdrawal of Caveat' 'mortgagee Sale' 'extension of Caveat']

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Procedural Posture

Application to Extend the Operation of a Caveat Under S 74 K of the Real Property Act 1900 / Ex Tempore Judgment on Notice of Motion

Legal Issues

  1. 1 ["Whether the operation of the plaintiffs' caveat should be extended under s 74K of the Real Property Act 1900 when notices of withdrawal of caveat had been executed and handed over to be used upon settlement of a mortgagee sale." 'Whether there was any utility in extending a caveat that was intended to be extinguished upon settlement.']

Ratio Decidendi

Because the plaintiffs had executed notices of withdrawal of caveat to be used upon settlement of the mortgagee sale, any extension would be followed by extinguishment when the withdrawal was used. The asserted effect on priority was not established on the material before the court, so there was little utility in extending the caveat and the discretion to extend it should be refused.

Court Disposition

Notice of motion dismissed with costs.

Orders

  • ['The notice of motion is dismissed.' "The plaintiffs are to pay the defendant's costs." 'The matter is stood over before the Registrar at 9.30 am on Friday 28 April 2006.']