Leslie Peter Sole v Benjamin Nuele Akari [2007] NSWSC 1022

Leslie Peter Sole v Benjamin Nuele Akari [2007] NSWSC 1022

The plaintiff provided valuable consideration—his forbearance to require immediate repayment—in return for the unregistered mortgage, so equity will assist him and he has a sufficient interest to justify leave to lodge a caveat under s74O, provided it complies with specified terms and is withdrawn upon settlement of a property sale.

Jurisdiction
Australia
Judgment Date
05 September 2007
Procedural Posture
Equity Proceedings / Hearing on Application for Extension of Caveat/leave to Lodge Caveat
Outcome
Application granted in principle—plaintiff entitled to relief under s74O Real Property Act (1900), subject to conditions.
Legal Topics
['caveats' 'unregistered Mortgages' 'consideration' 'forbearance to Sue']
['property Law' 'equity'] ['caveats' 'unregistered Mortgages' 'consideration' 'forbearance to Sue']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Equity Proceedings / Hearing on Application for Extension of Caveat/leave to Lodge Caveat

Legal Issues

  1. 1 ['Whether an unregistered mortgage granted after all loan advances have been made constitutes a sufficient interest to support a caveat' 'Whether forbearance to sue constitutes sufficient consideration for the grant of a mortgage']

Ratio Decidendi

The plaintiff provided valuable consideration—his forbearance to require immediate repayment—in return for the unregistered mortgage, so equity will assist him and he has a sufficient interest to justify leave to lodge a caveat under s74O, provided it complies with specified terms and is withdrawn upon settlement of a property sale.

Court Disposition

Application granted in principle—plaintiff entitled to relief under s74O Real Property Act (1900), subject to conditions.

Orders

  • ['Proceedings stood down to allow plaintiff to propound a compliant form of caveat and for parties to bring in short minutes of order to give effect to reasons.' 'To hear the parties on costs at 2pm.' 'Any caveat lodged to be withdrawn upon settlement of sale of subject property, with half the net proceeds (after...