Perpetual Nominees Limited v Taouk & Anor [2009] NSWSC 605

Perpetual Nominees Limited v Taouk & Anor [2009] NSWSC 605

The plaintiff had no caveatable interest in the Belfield property because the loan and mortgage documents did not clearly create any legal or equitable estate or interest in property owned by a guarantor but not described in the security documents. The evidence did not establish a sufficient danger that a prospective judgment would be unsatisfied: it showed financial difficulty, insistence on personal service, and a desire to remove an invalid caveat, but not avoidance of service or intended dissipation of assets. The extension of the caveat and freezing orders therefore could not be continued.

Jurisdiction
Australia
Judgment Date
02 July 2009
Procedural Posture
Notice of Motion in Proceedings by Lender Against Guarantors for Loan and Outstanding Interest Payments / Duty Judge Hearing for Continuation of Ex Parte Orders Made by the Registrar Extending Caveat Ae111568, Making Asset Preservation Orders, and Permitting Substituted Service
Outcome
Apart from orders 1-4 and 7-12, the orders of the Registrar made on 4 June 2009 were discharged; the plaintiff's application for asset preservation orders and extension of caveat AE111568 was dismissed; the plaintiff was ordered to pay Mr Taouk's costs of the hearing on 9 June 2009.
Legal Topics
['extension of Caveat' 'caveatable Interest' 'equitable Mortgage' 'freezing Order' 'asset Preservation Order' 'guarantees' 'adequacy of Evidence']
['real Property' 'civil Procedure' 'equity'] ['extension of Caveat' 'caveatable Interest' 'equitable Mortgage' 'freezing Order' 'asset Preservation Order' 'guarantees' 'adequacy of Evidence']

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Procedural Posture

Notice of Motion in Proceedings by Lender Against Guarantors for Loan and Outstanding Interest Payments / Duty Judge Hearing for Continuation of Ex Parte Orders Made by the Registrar Extending Caveat Ae111568, Making Asset Preservation Orders, and Permitting Substituted Service

Legal Issues

  1. 1 ['Whether the plaintiff had a caveatable interest in the Belfield property sufficient to extend caveat AE111568.' 'Whether clauses in the loan and mortgage documents created an equitable estate or interest in property owned by a guarantor but not described in the security documents.' 'Whether there was a danger that a prospective judgment against Mr Taouk would be wholly or partly unsatisfied so as to justify a freezing order.' 'Whether the evidence showed avoidance of service, intended disposal of assets, or other conduct sufficient for asset preservation orders.']

Ratio Decidendi

The plaintiff had no caveatable interest in the Belfield property because the loan and mortgage documents did not clearly create any legal or equitable estate or interest in property owned by a guarantor but not described in the security documents. The evidence did not establish a sufficient danger that a prospective judgment would be unsatisfied: it showed financial difficulty, insistence on personal service, and a desire to remove an invalid caveat, but not avoidance of service or intended dissipation of assets. The extension of the caveat and freezing orders therefore could not be continued.

Court Disposition

Apart from orders 1-4 and 7-12, the orders of the Registrar made on 4 June 2009 were discharged; the plaintiff's application for asset preservation orders and extension of caveat AE111568 was dismissed; the plaintiff was ordered to pay Mr Taouk's costs of the hearing on 9 June 2009.

Orders

  • ['Apart from orders 1-4 and 7-12 the orders of the Registrar made on 4 June 2009 are discharged.' "That part of the plaintiff's Notice of Motion which relates to asset preservation orders and the extension of caveat AE111568 is dismissed." "The plaintiff is to pay Mr Taouk's costs of the hearing before Hoeben J on 9...