Graham Rodney Friend v Lorraine May Sole [2013] NSWSC 1046

Graham Rodney Friend v Lorraine May Sole [2013] NSWSC 1046

Leave to lodge the further caveat was granted because the plaintiff's evidence raised a serious question to be tried that he had a substantial equitable beneficial interest in the Property arising from the alleged agreement and his contributions, and the balance of convenience favoured protection of that claimed...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
31 July 2013
Procedural Posture
Application Under S 74 O of the Real Property Act 1900 (nsw) for Leave to Lodge a Further Caveat / Ex Tempore Interlocutory Application
Outcome
Leave to lodge further caveat granted.
Legal Topics
['torrens System' 'caveats' 'leave to Lodge Further Caveat' 'resulting Trust' 'constructive Trust' 'balance of Convenience']
['property Law' 'equity'] ['torrens System' 'caveats' 'leave to Lodge Further Caveat' 'resulting Trust' 'constructive Trust' 'balance of Convenience']

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application Under S 74 O of the Real Property Act 1900 (nsw) for Leave to Lodge a Further Caveat / Ex Tempore Interlocutory Application

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave pursuant to s 74O of the Real Property Act 1900 (NSW) to lodge a further caveat over the Property.' 'Whether there was a serious question to be tried that the plaintiff had an equitable beneficial interest in the Property arising from an implied, resulting or constructive trust.' "Whether the balance of convenience favoured granting leave to lodge the further caveat despite the defendant's proposed undertaking concerning sale proceeds." 'Whether an order nunc pro tunc granting leave for the filing of the Second Caveat and extending it could be made.']

Ratio Decidendi

Leave to lodge the further caveat was granted because the plaintiff's evidence raised a serious question to be tried that he had a substantial equitable beneficial interest in the Property arising from the alleged agreement and his contributions, and the balance of convenience favoured protection of that claimed interest notwithstanding the defendant's proposed undertaking as to sale proceeds. The relief was structured to preserve its interlocutory nature by requiring the plaintiff's usual undertaking as to damages, delaying effect until withdrawal of the Second Caveat, and reserving leave to the defendant to apply for removal.

Court Disposition

Leave to lodge further caveat granted.

Orders

  • ['Subject to order 2, upon the plaintiff by his counsel giving to the Court the usual undertakings as to damages, the plaintiff have leave pursuant to section 74O(2) of the Real Property Act to lodge a further caveat in respect of the land comprised in folio identifier xxxxxxxxxx in the form initialled and dated by...