Karen Jane Gerard v Michael Bruno Joseph Jacquin [2011] NSWSC 913

Karen Jane Gerard v Michael Bruno Joseph Jacquin [2011] NSWSC 913

The plaintiff established that her claim had or may have substance because it was arguable that she held an equitable lien as an unpaid or partly paid vendor under the 9 August 2006 settlement. Although she had received $28,000 and signed transfer and discharge documents, she remained liable on the St George Bank mortgage and had bargained for the benefit of the defendant's indemnity as part of the consideration. The potential liability protected by that indemnity was arguably capable of supporting an equitable lien and therefore a caveatable interest, so the caveat should be extended until further order.

Jurisdiction
Australia
Judgment Date
05 August 2011
Procedural Posture
Interlocutory Application for Extension of Caveat / Equity Division Duty List
Outcome
Caveat extended and plaintiff directed to plead her claim.
Legal Topics
['torrens Title' 'caveats Against Dealings' 'extension of Caveat' 'caveatable Interest' 'equitable Lien' "vendor's Lien" 'domestic Relationship Property Settlement']
['real Property' 'equity'] ['torrens Title' 'caveats Against Dealings' 'extension of Caveat' 'caveatable Interest' 'equitable Lien' "vendor's Lien" 'domestic Relationship Property Settlement']

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Procedural Posture

Interlocutory Application for Extension of Caveat / Equity Division Duty List

Legal Issues

  1. 1 ['Whether the plaintiff had a caveatable interest sufficient to extend the operation of Caveat dealing number AF866674Z under the Real Property Act 1900 (NSW).' "Whether the plaintiff had an arguable equitable lien or vendor's lien arising from the 9 August 2006 property settlement and indemnity, despite having received $28,000 and signed transfer and discharge documents." 'Whether the potential liability under the indemnity relating to the St George Bank mortgage could support an equitable interest in the Wattle Grove property.']

Ratio Decidendi

The plaintiff established that her claim had or may have substance because it was arguable that she held an equitable lien as an unpaid or partly paid vendor under the 9 August 2006 settlement. Although she had received $28,000 and signed transfer and discharge documents, she remained liable on the St George Bank mortgage and had bargained for the benefit of the defendant's indemnity as part of the consideration. The potential liability protected by that indemnity was arguably capable of supporting an equitable lien and therefore a caveatable interest, so the caveat should be extended until further order.

Court Disposition

Caveat extended and plaintiff directed to plead her claim.

Orders

  • ['An order that the operation of Caveat dealing number AF866674Z recorded on 9/11/2010 be extended until further order of the Court.' 'Grant leave to the plaintiff to amend the summons to claim as final relief a declaration as to the equitable interest in the property described in the caveat.' 'Direct the plaintiff...