Perpetual Nominees Limited v Karamakis and Ors [2010] NSWSC 1041

Perpetual Nominees Limited v Karamakis and Ors [2010] NSWSC 1041

TAK Australia Pty Limited did not establish a seriously arguable equitable or other proprietary interest in the land as against the plaintiff. The lease was entered without the plaintiff mortgagee's prior written consent, was unregistered, and was contrary to clause 13 of the registered mortgage and s 53(4) of the Real Property Act 1900. TAK's expenditure on improvements did not create an interest binding the plaintiff because there was no evidence that the plaintiff induced, encouraged or knew of that expenditure. Consequently there was no basis to extend the caveat, join TAK as a defendant, or stay eviction, and the caveat should be withdrawn.

Jurisdiction
Australia
Judgment Date
15 September 2010
Procedural Posture
Mortgage Possession Proceedings With Motions Concerning Joinder, Stay of Eviction, Extension of Caveat and Withdrawal of Caveat / Procedural Motions After Default Judgment
Outcome
TAK's motion was dismissed.
Legal Topics
['supreme Court Procedure' 'joinder Application' 'stay of Eviction' 'torrens Title' 'caveats Against Dealings' 'extension of Caveat' 'withdrawal of Caveat' 'mortgagee Consent to Lease' 'unregistered Lease' 'indemnity Costs']
['procedure' 'real Property' 'costs'] ['supreme Court Procedure' 'joinder Application' 'stay of Eviction' 'torrens Title' 'caveats Against Dealings' 'extension of Caveat' 'withdrawal of Caveat' 'mortgagee Consent to Lease' 'unregistered Lease' 'indemnity Costs']

Case Brief

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Procedural Posture

Mortgage Possession Proceedings With Motions Concerning Joinder, Stay of Eviction, Extension of Caveat and Withdrawal of Caveat / Procedural Motions After Default Judgment

Legal Issues

  1. 1 ['Whether TAK Australia Pty Limited should be joined as a fourth defendant.' 'Whether TAK Australia Pty Limited had established a substantive equitable interest in the land sufficient to extend its caveat under s 74K of the Real Property Act 1900.' 'Whether the caveat should be withdrawn under s 74MA of the Real Property Act 1900.' 'Whether TAK Australia Pty Limited was entitled to a stay of any eviction order.' 'Whether the plaintiff should receive costs, including whether there was a basis to depart from the usual costs order.']

Ratio Decidendi

TAK Australia Pty Limited did not establish a seriously arguable equitable or other proprietary interest in the land as against the plaintiff. The lease was entered without the plaintiff mortgagee's prior written consent, was unregistered, and was contrary to clause 13 of the registered mortgage and s 53(4) of the Real Property Act 1900. TAK's expenditure on improvements did not create an interest binding the plaintiff because there was no evidence that the plaintiff induced, encouraged or knew of that expenditure. Consequently there was no basis to extend the caveat, join TAK as a defendant, or stay eviction, and the caveat should be withdrawn.

Court Disposition

TAK's motion was dismissed.

Orders

  • ['TAK Australia Pty Limited is ordered to withdraw its caveat within 7 days of the date of this judgment.' "TAK Australia Pty Limited is ordered to pay the plaintiff's costs of the motions, as agreed or assessed."]