Hanson Construction Materials v Vimwise Civil Engineering [2005] NSWSC 880

Hanson Construction Materials v Vimwise Civil Engineering [2005] NSWSC 880

The caveats were invalid and had to be removed because describing the claimed estate or interest merely as an "Equitable interest" did not specify the nature of the interest as required by the Real Property Act 1900 and Real Property Regulation 2003. That failure was fundamental and was not cured by the dispensing power in section 74L. Although the Court was not persuaded that the securities should be treated as merely floating charges, that did not save the defective caveats.

Jurisdiction
Australia
Judgment Date
25 August 2005
Procedural Posture
Application for Removal or Withdrawal of Two Caveats / Notice of Motion Heard Urgently in Equity Division
Outcome
Caveats ordered to be withdrawn; defendants awarded costs of the notice of motion.
Legal Topics
['caveats Against Dealings' 'equitable Charges' 'fixed and Floating Charges' 'requirements for Specifying Caveatable Interests' 'real Property Act 1900 S 74 L']
['property Law' 'equity' 'torrens Title' 'mortgages and Securities'] ['caveats Against Dealings' 'equitable Charges' 'fixed and Floating Charges' 'requirements for Specifying Caveatable Interests' 'real Property Act 1900 S 74 L']

Case Brief

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 for Removal or Withdrawal of Two Caveats / Notice of Motion Heard Urgently in Equity Division

Legal Issues

  1. 1 ['Whether the charges created by the Application for Commercial Credit and Guarantee and Indemnity were fixed charges or merely floating charges.' 'Whether a floating charge over land creates a caveatable interest.' 'Whether caveats claiming only an "Equitable interest" specified the prescribed particulars of the estate or interest claimed.' 'Whether section 74L of the Real Property Act 1900 could cure the defects in the caveats.']

Ratio Decidendi

The caveats were invalid and had to be removed because describing the claimed estate or interest merely as an "Equitable interest" did not specify the nature of the interest as required by the Real Property Act 1900 and Real Property Regulation 2003. That failure was fundamental and was not cured by the dispensing power in section 74L. Although the Court was not persuaded that the securities should be treated as merely floating charges, that did not save the defective caveats.

Court Disposition

Caveats ordered to be withdrawn; defendants awarded costs of the notice of motion.

Orders

  • ['The caveats be withdrawn by 10 am on 26 August 2005.' 'The orders may be entered forthwith.' "The plaintiff pay the defendants' costs of the notice of motion heard on 25 August 2005." 'The Court declined at that stage to make any partial order relating to the costs of the proceedings to date.' "The proceedings...