M State Pty Ltd v Sepentulevski [2009] NSWSC 984

M State Pty Ltd v Sepentulevski [2009] NSWSC 984

The caveat could not be sustained because the claimed estate or interest was described as "equitable instrument", which is not a recognised species of estate or interest in land. Even if read as "equitable interest", the description would be insufficient under the caveat requirements. The deed of loan also did not clearly create a charge or security over the relevant land sufficient to support the caveat.

Jurisdiction
Australia
Judgment Date
18 September 2009
Procedural Posture
Application Under S 74 K of the Real Property Act 1900 for an Order Extending the Operation of a Caveat / Notice of Motion
Outcome
Notice of motion dismissed
Legal Topics
['caveat Against Dealing' 'extension of Caveat' 'description of Caveatable Estate or Interest' 'equitable Interest' 'security Over Land']
['real Property' 'equity'] ['caveat Against Dealing' 'extension of Caveat' 'description of Caveatable Estate or Interest' 'equitable Interest' 'security Over Land']

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Procedural Posture

Application Under S 74 K of the Real Property Act 1900 for an Order Extending the Operation of a Caveat / Notice of Motion

Legal Issues

  1. 1 ["Whether the plaintiff's claim in caveat AD868647B has or may have substance for the purposes of s 74K(2) of the Real Property Act 1900." 'Whether the caveat\'s description of the estate or interest claimed as "equitable instrument" identified a recognisable estate or interest in land.' 'Whether, if the description were treated as "equitable interest", it was sufficient to support the caveat.' 'Whether the deed of loan dated 29 February 2008 created or operated as security affecting the relevant land.']

Ratio Decidendi

The caveat could not be sustained because the claimed estate or interest was described as "equitable instrument", which is not a recognised species of estate or interest in land. Even if read as "equitable interest", the description would be insufficient under the caveat requirements. The deed of loan also did not clearly create a charge or security over the relevant land sufficient to support the caveat.

Court Disposition

Notice of motion dismissed

Orders

  • ['The notice of motion is dismissed.']