International Computer Network Pty Ltd v Lumos International Pty Ltd [2018] NSWSC 1793

International Computer Network Pty Ltd v Lumos International Pty Ltd [2018] NSWSC 1793

Although the Heads of Agreement may give rise to a caveatable interest, the balance of convenience favours removal of the caveat due to significant risk and prejudice to Lumos (registered proprietor), absence of any undertaking as to damages by ICN, alternative security being offered, and likelihood that maintenance of the caveat may not secure ICN's claimed conveyance. In exercising the discretion under s 74MA of the Real Property Act 1900 (NSW), removal is ordered, subject to undertakings by second defendant.

Jurisdiction
Australia
Judgment Date
21 November 2018
Procedural Posture
Application for Removal of Caveat / Interlocutory Determination
Outcome
Caveat to be withdrawn; interlocutory orders made subject to defendant's undertaking; costs in the cause.
Legal Topics
['removal of Caveat' 'balance of Convenience' 'equitable Interest' 'specific Performance' 'strata Schemes']
['land Law' 'equity' 'real Property'] ['removal of Caveat' 'balance of Convenience' 'equitable Interest' 'specific Performance' 'strata Schemes']

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Procedural Posture

Application for Removal of Caveat / Interlocutory Determination

Legal Issues

  1. 1 ['Whether the plaintiff has a caveatable interest under the Heads of Agreement' 'Whether balance of convenience favours maintaining or removing the caveat' 'Validity and enforceability of the Heads of Agreement' 'Adequacy of alternative security offered by the defendant']

Ratio Decidendi

Although the Heads of Agreement may give rise to a caveatable interest, the balance of convenience favours removal of the caveat due to significant risk and prejudice to Lumos (registered proprietor), absence of any undertaking as to damages by ICN, alternative security being offered, and likelihood that maintenance of the caveat may not secure ICN's claimed conveyance. In exercising the discretion under s 74MA of the Real Property Act 1900 (NSW), removal is ordered, subject to undertakings by second defendant.

Court Disposition

Caveat to be withdrawn; interlocutory orders made subject to defendant's undertaking; costs in the cause.

Orders

  • ['Order pursuant to s 74MA of the Real Property Act 1900 (NSW) and inherent jurisdiction that the plaintiff withdraw caveat AN398997Q registered over Lot 703 in DP 854202.' "Subject to the usual undertaking as to damages by Second Defendant and formal undertaking filed regarding holding two units as security for...