McGrath v McGrath [2006] NSWSC 736

McGrath v McGrath [2006] NSWSC 736

The ex parte extension order should be vacated and the caveat removed because Paul William McGrath did not demonstrate a serious question to be tried that he had any equitable interest in the Kirrawee property. The mortgage on the Cronulla unit had been set aside before its sale and could not found an interest in that property or its proceeds, and the evidence showed that no proceeds of the Cronulla unit came into David McGrath's hands or were traceable into the Kirrawee property.

Jurisdiction
Australia
Judgment Date
20 July 2006
Procedural Posture
Amended Notice of Motion by Registered Proprietors to Set Aside an Order Extending a Caveat and to Remove the Caveat / Hearing of Amended Notice of Motion; Ex Tempore Judgment
Outcome
Caveat set aside; plaintiff ordered to pay defendants' costs.
Legal Topics
['caveats Against Dealings' 'extension of Caveat' 'ex Parte Orders' 'equitable Interest in Land' 'serious Question to Be Tried' 'balance of Convenience' 'costs Following the Event' 'without Prejudice Negotiations on Costs']
['conveyancing' 'real Property' 'torrens Title' 'civil Procedure' 'evidence'] ['caveats Against Dealings' 'extension of Caveat' 'ex Parte Orders' 'equitable Interest in Land' 'serious Question to Be Tried' 'balance of Convenience' 'costs Following the Event' 'without Prejudice Negotiations on Costs']

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Procedural Posture

Amended Notice of Motion by Registered Proprietors to Set Aside an Order Extending a Caveat and to Remove the Caveat / Hearing of Amended Notice of Motion; Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether an ex parte order extending caveat AB665749Y over 3 Bounty Avenue Kirrawee should be set aside.' 'Whether Paul William McGrath demonstrated a serious question to be tried that he had an equitable interest in the Kirrawee property.' 'Whether any proceeds or interest connected with the Cronulla property could be traced into the Kirrawee property.' 'Whether costs should follow the event despite settlement negotiations.']

Ratio Decidendi

The ex parte extension order should be vacated and the caveat removed because Paul William McGrath did not demonstrate a serious question to be tried that he had any equitable interest in the Kirrawee property. The mortgage on the Cronulla unit had been set aside before its sale and could not found an interest in that property or its proceeds, and the evidence showed that no proceeds of the Cronulla unit came into David McGrath's hands or were traceable into the Kirrawee property.

Court Disposition

Caveat set aside; plaintiff ordered to pay defendants' costs.

Orders

  • ['The order made on 5 September 2005 extending caveat AB665749Y was vacated.' 'The caveat was ordered to be withdrawn.' 'Orders two, three and four in the Amended Notice of Motion were made, with the figure seven inserted in order four.' 'Paragraph five of the Notice of Motion was not pressed.' "The plaintiff was...