Manttan v Equititrust Limited [2010] NSWSC 931

Manttan v Equititrust Limited [2010] NSWSC 931

The defendant has a valid caveatable interest by virtue of an equitable charge created in clause 9.3 of the Deed of Guarantee and Indemnity. The caveat sufficiently describes the interest as equitable mortgagee. The sales proposed are below market value and no alternate security is provided, so removing the caveat would create real prejudice, risk of loss of priority and reduced proceeds to the defendant. The application to remove the caveat is dismissed.

Jurisdiction
Australia
Judgment Date
12 August 2010
Procedural Posture
Application Pursuant to Real Property Act 1900, S 74 MA / Judgment at First Instance
Outcome
Application dismissed
Legal Topics
['caveat Removal' 'equitable Mortgage' 'priority of Security Interests' 'sale Below Market Value']
['real Property' 'equity'] ['caveat Removal' 'equitable Mortgage' 'priority of Security Interests' 'sale Below Market Value']

Case Brief

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Procedural Posture

Application Pursuant to Real Property Act 1900, S 74 MA / Judgment at First Instance

Legal Issues

  1. 1 ['Whether defendant has a caveatable interest in the properties' 'Whether the caveat sufficiently describes the caveatable interest' 'Whether the caveat is invalid due to improper purpose or defect' 'Whether the caveat should be removed given sales below market value and risks to defendant']

Ratio Decidendi

The defendant has a valid caveatable interest by virtue of an equitable charge created in clause 9.3 of the Deed of Guarantee and Indemnity. The caveat sufficiently describes the interest as equitable mortgagee. The sales proposed are below market value and no alternate security is provided, so removing the caveat would create real prejudice, risk of loss of priority and reduced proceeds to the defendant. The application to remove the caveat is dismissed.

Court Disposition

Application dismissed

Orders

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