Bolitho v Permanent Custodians Ltd & Anor [2009] NSWSC 734

Bolitho v Permanent Custodians Ltd & Anor [2009] NSWSC 734

There is no proper evidential basis for the issue of subpoenas; the caveat's claim has been fully resolved in previous proceedings adverse to the plaintiff; under section 74MA, the caveat must be withdrawn and the plaintiff restrained from lodging further caveats over the property. Adjournment is refused as no cogent basis is established.

Parties
Plaintiff: Kim Maree Bolitho; First Defendant: Permanent Custodians Limited; Second Defendant: Bluestone Mortgages; Third Defendant: Mark Griffin of Professionals Real Estate, Avalon; Fourth Defendant: The Professionals Real Estate's Auctioneer; Fifth Defendant: Properties on Line; Sixth Defendant: Bluestone's Valuer
Jurisdiction
Australia
Judgment Date
30 June 2009
Procedural Posture
Equity Application / Interlocutory Application/judgment
Outcome
Caveat to be withdrawn; plaintiff restrained from lodging further caveats; orders stayed until 1pm 1 July for possible appeal; plaintiff to pay first defendant's costs.
Legal Topics
Caveats, Mortgages, Injunctions, Auction Sales, Subpoenas
Property Law Equity Caveats Mortgages Injunctions Auction Sales Subpoenas

Case Brief

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Parties

Kim Maree Bolitho

Plaintiff

Permanent Custodians Limited

First Defendant

Bluestone Mortgages

Second Defendant

Mark Griffin of Professionals Real Estate, Avalon

Third Defendant

The Professionals Real Estate's Auctioneer

Fourth Defendant

Properties on Line

Fifth Defendant

Bluestone's Valuer

Sixth Defendant

Procedural Posture

Equity Application / Interlocutory Application/judgment

Legal Issues

  1. 1 Whether there is a proper basis for the issue of subpoenas
  2. 2 Whether the plaintiff should withdraw the caveat lodged over the subject property
  3. 3 Whether the plaintiff should be restrained from lodging further caveats over the property

Ratio Decidendi

There is no proper evidential basis for the issue of subpoenas; the caveat's claim has been fully resolved in previous proceedings adverse to the plaintiff; under section 74MA, the caveat must be withdrawn and the plaintiff restrained from lodging further caveats over the property. Adjournment is refused as no cogent basis is established.

Court Disposition

Caveat to be withdrawn; plaintiff restrained from lodging further caveats; orders stayed until 1pm 1 July for possible appeal; plaintiff to pay first defendant's costs.

Orders

  • Plaintiff to withdraw caveat number AE 758610 over folio identifier A/415058 by 4pm 1 July.
  • Plaintiff restrained from lodging further caveats over land in folio identifier A/415058.