Scott Darren Pascoe and Mark Robinson in their capacity as trustees for the sale of land known as 124 Tennyson Road Gladesville v Michael James [2013] NSWSC 1067

Scott Darren Pascoe and Mark Robinson in their capacity as trustees for the sale of land known as 124 Tennyson Road Gladesville v Michael James [2013] NSWSC 1067

Because the defendants had been served but did not appear, the evidence showed at least three unmeritorious caveats and a real risk of further caveats disrupting completion of the sale, the Court ordered withdrawal of the remaining caveat within a limited time and restrained further caveats without leave. However, the circumstances did not justify displacing the usual position that costs be awarded on the ordinary basis, so indemnity costs were refused.

Jurisdiction
Australia
Judgment Date
06 August 2013
Procedural Posture
Summons for Withdrawal of Caveat, Injunction Against Further Caveats, Pecuniary Loss and Costs / Ex Tempore Judgment in the Duty List
Outcome
Caveat withdrawn and injunction against further lodgment; indemnity costs refused.
Legal Topics
['caveats' 'withdrawal of Caveat' 'serial Lodgment of Unmeritorious Caveats' 'injunction Restraining Further Caveats' 'costs']
['property Law' 'torrens System' 'equity'] ['caveats' 'withdrawal of Caveat' 'serial Lodgment of Unmeritorious Caveats' 'injunction Restraining Further Caveats' 'costs']

Case Brief

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Procedural Posture

Summons for Withdrawal of Caveat, Injunction Against Further Caveats, Pecuniary Loss and Costs / Ex Tempore Judgment in the Duty List

Legal Issues

  1. 1 ['Whether the remaining caveat over the Land should be withdrawn under s 74MA of the Real Property Act 1900 (NSW).' 'Whether the defendants should be restrained from lodging any further caveats over the Land without leave of the Court.' "Whether the defendants should pay the plaintiffs' costs on an indemnity basis."]

Ratio Decidendi

Because the defendants had been served but did not appear, the evidence showed at least three unmeritorious caveats and a real risk of further caveats disrupting completion of the sale, the Court ordered withdrawal of the remaining caveat within a limited time and restrained further caveats without leave. However, the circumstances did not justify displacing the usual position that costs be awarded on the ordinary basis, so indemnity costs were refused.

Court Disposition

Caveat withdrawn and injunction against further lodgment; indemnity costs refused.

Orders

  • ['The remaining caveat over the Land was ordered to be withdrawn within a limited time.' 'The defendants were restrained from lodging any further caveats over the Land without leave of the Court.' "The plaintiffs' application for indemnity costs was refused, with costs to follow the ordinary basis." "The plaintiffs'...