Bellissimo v JCL Investments Pty Ltd [2009] NSWSC 1260

Bellissimo v JCL Investments Pty Ltd [2009] NSWSC 1260

The caveat was defective because it failed to properly describe the estate or interest claimed, merely referring to 'equitable interest', and did not satisfy statutory requirements. Even if interpreted as a charge, the caveat would be unenforceable for want of mortgage duty. The purposes and terms of the deed did not demonstrate an intention to create an equitable charge over the land, but at most imposed a negative covenant not to deal with the land, which is not an interest in land. Therefore, the caveat cannot be sustained and should be removed.

Jurisdiction
Australia
Judgment Date
02 November 2009
Procedural Posture
Application (summons) for Caveat Extension / Judgment After Hearing (ex Parte, No Appearance for Defendant)
Outcome
Plaintiff ordered to remove caveat; proceedings otherwise dismissed; no order as to costs.
Legal Topics
['caveats' 'equitable Interests' 'mortgage Duty' 'real Property Act Compliance']
['equity' 'property Law'] ['caveats' 'equitable Interests' 'mortgage Duty' 'real Property Act Compliance']

Case Brief

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Procedural Posture

Application (summons) for Caveat Extension / Judgment After Hearing (ex Parte, No Appearance for Defendant)

Legal Issues

  1. 1 ['Whether the caveat describes an adequate interest in land to justify its continuation' 'Whether the agreement confers a caveatable interest or an equitable charge' 'Whether the caveat form complies with statutory requirements' 'Effect of unpaid mortgage duty on enforceability of an alleged equitable charge']

Ratio Decidendi

The caveat was defective because it failed to properly describe the estate or interest claimed, merely referring to 'equitable interest', and did not satisfy statutory requirements. Even if interpreted as a charge, the caveat would be unenforceable for want of mortgage duty. The purposes and terms of the deed did not demonstrate an intention to create an equitable charge over the land, but at most imposed a negative covenant not to deal with the land, which is not an interest in land. Therefore, the caveat cannot be sustained and should be removed.

Court Disposition

Plaintiff ordered to remove caveat; proceedings otherwise dismissed; no order as to costs.

Orders

  • ['Order that the plaintiff remove caveat number AD5289XXX forthwith.' 'Order that the proceedings be otherwise dismissed.']