Lew v Bluescope Distribution Pty Ltd [2010] NSWSC 794

Lew v Bluescope Distribution Pty Ltd [2010] NSWSC 794

Although the defendant had a legitimate caveatable interest under the secured guarantee and indemnity, there was no serious issue to be tried warranting interlocutory protection because St George Bank held a prior registered mortgage, there was no evidence it took with notice of the defendant's unregistered interest, and the mortgage debt would exhaust the sale proceeds. The caveat conferred no realistic benefit on the defendant and impeded the sale and third-party rights, so the balance of convenience and interests of justice required its withdrawal. The defendant's unsustainable maintenance of its position warranted indemnity costs.

Jurisdiction
Australia
Judgment Date
14 July 2010
Procedural Posture
Application for Removal of Caveat / Ex Tempore Judgment
Outcome
Caveat ordered to be withdrawn forthwith; defendant ordered to pay the plaintiff's costs on an indemnity basis.
Legal Topics
['caveat Removal' 'caveatable Interest' 'equitable Charge' 'registered Mortgage Priority' 'interlocutory Injunction Principles' 'balance of Convenience' 'indemnity Costs']
['real Property' 'equity'] ['caveat Removal' 'caveatable Interest' 'equitable Charge' 'registered Mortgage Priority' 'interlocutory Injunction Principles' 'balance of Convenience' 'indemnity Costs']

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Procedural Posture

Application for Removal of Caveat / Ex Tempore Judgment

Legal Issues

  1. 1 ["Whether the defendant's caveat should be withdrawn under s 74MA of the Real Property Act in relation to 41 Thorby Avenue, Dubbo." "Whether the defendant's unregistered equitable charge raised a serious issue to be tried against the prior registered mortgage of St George Bank." 'Whether the balance of convenience favoured maintaining or removing the caveat.' 'Whether the plaintiff should be required to pay money into court, provide alternative security, or indemnify the defendant for possible costs of proceedings against St George Bank.' 'Whether indemnity costs should be ordered against the defendant.']

Ratio Decidendi

Although the defendant had a legitimate caveatable interest under the secured guarantee and indemnity, there was no serious issue to be tried warranting interlocutory protection because St George Bank held a prior registered mortgage, there was no evidence it took with notice of the defendant's unregistered interest, and the mortgage debt would exhaust the sale proceeds. The caveat conferred no realistic benefit on the defendant and impeded the sale and third-party rights, so the balance of convenience and interests of justice required its withdrawal. The defendant's unsustainable maintenance of its position warranted indemnity costs.

Court Disposition

Caveat ordered to be withdrawn forthwith; defendant ordered to pay the plaintiff's costs on an indemnity basis.

Orders

  • ['Pursuant to s 74MA of the Real Property Act, caveat number AF471095C be withdrawn forthwith in relation to the property known as 41 Thorby Avenue, Dubbo, being the whole of the land in lot 67 in deposited plan 1005323.' "The defendant pay the plaintiff's costs on an indemnity basis."]