McCulloch v Fern [2000] NSWSC 729

McCulloch v Fern [2000] NSWSC 729

The second caveat was based on the same $93,325 payment and was in respect of the same estate, interest or right as the first caveat, so it had no effect under Real Property Act 1900 s 74O. However, the plaintiff had shown an arguable trust interest and the balance of convenience favoured interlocutory protection; because a caveat was preferable to an injunction to maintain the status quo and warn third parties, leave was granted to lodge a fresh caveat.

Jurisdiction
Australia
Judgment Date
21 July 2000
Procedural Posture
Equity Proceedings Concerning Caveats Against Dealings Under the Torrens System / Interlocutory Notice of Motion to Extend the Operation of Caveat 6711548 Following a Lapsing Notice, With Leave Sought to Lodge a Fresh Caveat
Outcome
Second caveat declared to have no effect; leave granted to lodge a fresh caveat; no order as to costs of the motion.
Legal Topics
['torrens System' 'caveats Against Dealings' 'successive Caveats' 'implied or Constructive Trust' 'resulting Trust' 'interlocutory Relief' 'laches' 'balance of Convenience']
['conveyancing' 'real Property' 'equity'] ['torrens System' 'caveats Against Dealings' 'successive Caveats' 'implied or Constructive Trust' 'resulting Trust' 'interlocutory Relief' 'laches' 'balance of Convenience']

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Procedural Posture

Equity Proceedings Concerning Caveats Against Dealings Under the Torrens System / Interlocutory Notice of Motion to Extend the Operation of Caveat 6711548 Following a Lapsing Notice, With Leave Sought to Lodge a Fresh Caveat

Legal Issues

  1. 1 ['Whether the plaintiff had an arguable trust interest in the land sufficient to justify interlocutory protection.' 'Whether delay or laches should lead to refusal of interlocutory relief.' 'Whether caveat 6711548 was based on the same facts and claimed the same estate, interest or right as the earlier caveat within the meaning of Real Property Act 1900 s 74O.' 'Whether leave should be granted to lodge a fresh caveat despite the second caveat having no effect.']

Ratio Decidendi

The second caveat was based on the same $93,325 payment and was in respect of the same estate, interest or right as the first caveat, so it had no effect under Real Property Act 1900 s 74O. However, the plaintiff had shown an arguable trust interest and the balance of convenience favoured interlocutory protection; because a caveat was preferable to an injunction to maintain the status quo and warn third parties, leave was granted to lodge a fresh caveat.

Court Disposition

Second caveat declared to have no effect; leave granted to lodge a fresh caveat; no order as to costs of the motion.

Orders

  • ['Declare that caveat 6711548 has no effect by virtue of Real Property Act 1900 s 74O.' 'Order that the plaintiff have leave to lodge a fresh caveat in terms of Exhibit A3, with a copy to be attached to the entered order.' 'No order as to the costs of the motion.']