Oracle (NSW) Pty Ltd (in liq) v Matar [2021] NSWSC 1244

Oracle (NSW) Pty Ltd (in liq) v Matar [2021] NSWSC 1244

The Company had a serious question to be tried that its funds were applied to improvements on property owned by its director or former director and that relief could extend to a constructive trust. The balance of convenience did not permit withdrawal on Ms Matar's primary proposed conditions because they would not sufficiently preserve the Company's claimed proprietary interest in the funds or replacement property. Withdrawal was appropriate only on the respondents' conditions, adopted by Ms Matar in the alternative, requiring $1,500,000 from the sale proceeds to be paid into Court or a solicitor's controlled moneys account, with liberty to apply for release. No undertaking as to damages...

Jurisdiction
Australia
Judgment Date
15 September 2021
Procedural Posture
Application Under S 74 Ma(2) of the Real Property Act 1900 (nsw) for Withdrawal of Caveat / Interlocutory Notice of Motion in Equity Corporations List
Outcome
Application granted on the respondents' proposed conditions; caveat to be withdrawn with costs on the ordinary basis payable forthwith.
Legal Topics
['caveats' 'removal of Caveat Under S 74 MA of the Real Property Act 1900 (nsw)' 'balance of Convenience' 'constructive Trust' 'undertaking as to Damages' 'costs']
['land Law' 'equity' 'corporations'] ['caveats' 'removal of Caveat Under S 74 MA of the Real Property Act 1900 (nsw)' 'balance of Convenience' 'constructive Trust' 'undertaking as to Damages' 'costs']

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Procedural Posture

Application Under S 74 Ma(2) of the Real Property Act 1900 (nsw) for Withdrawal of Caveat / Interlocutory Notice of Motion in Equity Corporations List

Legal Issues

  1. 1 ['Whether the caveat over the Bowral property should be withdrawn under s 74MA(2) of the Real Property Act 1900 (NSW).' 'Whether the balance of convenience favoured withdrawal of the caveat on conditions proposed by Ms Matar or on conditions proposed by the Company and its liquidators.' 'Whether the Company and liquidators should be required to give an undertaking as to damages.' 'Whether costs should be ordered on an indemnity basis and payable forthwith.']

Ratio Decidendi

The Company had a serious question to be tried that its funds were applied to improvements on property owned by its director or former director and that relief could extend to a constructive trust. The balance of convenience did not permit withdrawal on Ms Matar's primary proposed conditions because they would not sufficiently preserve the Company's claimed proprietary interest in the funds or replacement property. Withdrawal was appropriate only on the respondents' conditions, adopted by Ms Matar in the alternative, requiring $1,500,000 from the sale proceeds to be paid into Court or a solicitor's controlled moneys account, with liberty to apply for release. No undertaking as to damages...

Court Disposition

Application granted on the respondents' proposed conditions; caveat to be withdrawn with costs on the ordinary basis payable forthwith.

Orders

  • ["Oracle (NSW) Pty Ltd (in liq) withdraw the caveat over the Bowral property on conditions requiring $1,500,000 from the sale proceeds to be paid into Court or a solicitor's controlled moneys account, with liberty to Ms Matar to apply for release of the funds if liquidators' consent cannot be obtained." 'No...