La Fontaine v Manley [2000] NSWSC 1252

La Fontaine v Manley [2000] NSWSC 1252

The existing caveat could not be extended because it did not refer to the operative handwritten document said to found the caveatable interest, and the unexecuted cost agreement alone could not give the plaintiff rights. However, the plaintiff's claim that the handwritten document created a present charge over the properties to secure legal costs was arguable and could not be said to lack substance; no present debt being due did not itself negate the possible charge. The Court therefore exercised its discretion to permit a fresh caveat, subject to conditions designed to protect only the amount properly secured and to avoid unnecessary interference with the defendant's dealings with the...

Jurisdiction
Australia
Judgment Date
06 December 2000
Procedural Posture
Application for Extension of Caveat Over Torrens System Land and Leave to Lodge a Fresh Caveat / Hearing of Plaintiff's Application Under the Real Property Act 1900
Outcome
Extension of the existing caveat refused; leave granted to lodge a fresh caveat subject to conditions.
Legal Topics
['torrens Title Caveats' 'extension of Caveat' 'caveatable Interest' 'equitable Charge for Legal Costs' 'discretion to Permit Lodgment of Further Caveat']
['conveyancing' 'property Law' 'equity' 'legal Profession Costs'] ['torrens Title Caveats' 'extension of Caveat' 'caveatable Interest' 'equitable Charge for Legal Costs' 'discretion to Permit Lodgment of Further Caveat']

Case Brief

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Procedural Posture

Application for Extension of Caveat Over Torrens System Land and Leave to Lodge a Fresh Caveat / Hearing of Plaintiff's Application Under the Real Property Act 1900

Legal Issues

  1. 1 ['Whether the existing caveat should be extended under s 74K of the Real Property Act 1900.' "Whether the plaintiff's claim to a caveatable interest based on the handwritten agreement had or may have substance." 'Whether the existing caveat was defective because it did not refer to the handwritten document relied on as founding the asserted charge.' 'Whether the Court should exercise discretion to permit lodgment of a fresh caveat under s 74O of the Real Property Act 1900.' 'Whether matters including non-compliance with Legal Profession Act 1987 costs provisions, alleged use of the caveat as leverage, unclean hands, and asset sufficiency should lead the Court to refuse relief.']

Ratio Decidendi

The existing caveat could not be extended because it did not refer to the operative handwritten document said to found the caveatable interest, and the unexecuted cost agreement alone could not give the plaintiff rights. However, the plaintiff's claim that the handwritten document created a present charge over the properties to secure legal costs was arguable and could not be said to lack substance; no present debt being due did not itself negate the possible charge. The Court therefore exercised its discretion to permit a fresh caveat, subject to conditions designed to protect only the amount properly secured and to avoid unnecessary interference with the defendant's dealings with the...

Court Disposition

Extension of the existing caveat refused; leave granted to lodge a fresh caveat subject to conditions.

Orders

  • ['The present caveat is to be allowed to lapse.' 'The plaintiff is permitted to lodge a fresh caveat.' 'The plaintiff must diligently take all appropriate steps to quantify, or cooperate in taking all appropriate steps to quantify, the amount of costs he is entitled to be paid and which may be secured under the...