ProLend Solutions No. 123 Pty Ltd v Karout [2023] NSWSC 490

ProLend Solutions No. 123 Pty Ltd v Karout [2023] NSWSC 490

There was no justification for the caveat to remain on title because the genuineness of the alleged contract was doubtful, there was no evidence of attempted completion, deposit payment, or independent pre-existing contract, and in any event any purchaser interest of the defendant would not prevail over the plaintiff's earlier registered mortgage interest. The caveat was therefore an obstacle to completion of the plaintiff's sale and should be withdrawn under s 74MA of the Real Property Act 1900.

Jurisdiction
Australia
Judgment Date
08 May 2023
Procedural Posture
Application to Remove a Caveat From the Register / Ex Tempore Judgment in the Equity Duty List
Outcome
Caveat ordered withdrawn; defendant ordered to pay the plaintiff's costs on an indemnity basis.
Legal Topics
['caveats' 'removal of Caveat by Order of Court' 'registered Mortgage' 'mortgagee Power of Sale']
['land Law' 'real Property'] ['caveats' 'removal of Caveat by Order of Court' 'registered Mortgage' 'mortgagee Power of Sale']

Case Brief

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Procedural Posture

Application to Remove a Caveat From the Register / Ex Tempore Judgment in the Equity Duty List

Legal Issues

  1. 1 ["Whether caveat AT14030 should be withdrawn from the title so that the plaintiff's sale of the property could complete." "Whether the defendant had a caveatable interest sufficient to justify maintaining the caveat against the plaintiff's registered mortgage interest."]

Ratio Decidendi

There was no justification for the caveat to remain on title because the genuineness of the alleged contract was doubtful, there was no evidence of attempted completion, deposit payment, or independent pre-existing contract, and in any event any purchaser interest of the defendant would not prevail over the plaintiff's earlier registered mortgage interest. The caveat was therefore an obstacle to completion of the plaintiff's sale and should be withdrawn under s 74MA of the Real Property Act 1900.

Court Disposition

Caveat ordered withdrawn; defendant ordered to pay the plaintiff's costs on an indemnity basis.

Orders

  • ['Order that the defendant withdraw forthwith caveat AT14030 lodged in respect of the land comprised in folio identifier 90/260721 and more particularly known as 73 Bradman Road, Menai, 2234 in the State of New South Wales.' "Order that the defendant pay the plaintiff's costs of the proceedings on an indemnity basis."]