Guardian Loans Pty Ltd v FTFS Holdings Pty Ltd & Ors [2009] NSWSC 1163

Guardian Loans Pty Ltd v FTFS Holdings Pty Ltd & Ors [2009] NSWSC 1163

Guardian had an undeniable caveatable interest as unregistered second mortgagee, and its prescribed-form caveat was not invalid because, properly construed with s 74H(5)(g), it did not prohibit Suncorp as prior registered mortgagee from registering a dealing on exercise of its power of sale. The caveat had not been shown to breach clauses 11.2(e) or 11.2(f) of the Deed of Priority, there was no evidence that retaining it until settlement would prejudice Suncorp's sale, and there was no valuation evidence proving no protective purpose. The balance of convenience therefore favoured extending the caveat until further order.

Jurisdiction
Australia
Judgment Date
03 November 2009
Procedural Posture
Application Under S 74 K Real Property Act 1900 (nsw) for an Order Extending the Operation of a Caveat / Principal Judgment
Outcome
Operation of caveat extended until further order.
Legal Topics
['caveats' 'unregistered Second Mortgage' 'registered First Mortgage' 'power of Sale' 'deed of Priority' 'real Property Act 1900 (nsw) S 74 H(5)(g)' 'discretion to Extend Caveat']
['real Property' 'equity'] ['caveats' 'unregistered Second Mortgage' 'registered First Mortgage' 'power of Sale' 'deed of Priority' 'real Property Act 1900 (nsw) S 74 H(5)(g)' 'discretion to Extend Caveat']

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Procedural Posture

Application Under S 74 K Real Property Act 1900 (nsw) for an Order Extending the Operation of a Caveat / Principal Judgment

Legal Issues

  1. 1 ["Whether the caveat protecting Guardian's unregistered second mortgage was incurably bad in form because it prohibited any dealing with the property." 'Whether s 74H(5)(g) of the Real Property Act 1900 (NSW) meant the caveat did not prohibit registration of a transfer by Suncorp as prior registered mortgagee exercising its power of sale.' 'Whether lodging or maintaining the caveat breached clauses 11.2(e) or 11.2(f) of the Deed of Priority.' 'Whether the Court should exercise its discretion to allow the caveat to lapse despite Guardian having a caveatable interest.']

Ratio Decidendi

Guardian had an undeniable caveatable interest as unregistered second mortgagee, and its prescribed-form caveat was not invalid because, properly construed with s 74H(5)(g), it did not prohibit Suncorp as prior registered mortgagee from registering a dealing on exercise of its power of sale. The caveat had not been shown to breach clauses 11.2(e) or 11.2(f) of the Deed of Priority, there was no evidence that retaining it until settlement would prejudice Suncorp's sale, and there was no valuation evidence proving no protective purpose. The balance of convenience therefore favoured extending the caveat until further order.

Court Disposition

Operation of caveat extended until further order.

Orders

  • ["The operation of Guardian's caveat is continued until further order." 'The parties were to be heard as to costs.']