Icamp v Eykamp [2008] NSWSC 853

Icamp v Eykamp [2008] NSWSC 853

The plaintiff had no enforceable estate or interest in the relevant land capable of supporting the caveat. The 29 January 1996 agreement could not affect Janet's undivided one-half share because she was not a party. As to Lynn's undivided one-half share, the alleged $400,000 on demand debt was statute barred before the caveat was lodged and before the 15 August 2007 demand, and the agreement was also unenforceable because mortgage duty had not been paid. Accordingly the plaintiff did not show that the caveat had or may have substance under s 74K.

Jurisdiction
Australia
Judgment Date
20 August 2008
Procedural Posture
Application Under S 74 K of the Real Property Act 1900 for an Order Extending the Operation of a Caveat / Principal Judgment
Outcome
Order extending operation of caveat until further order discharged, so that there is no order in force for extension of the operation of the caveat.
Legal Topics
['extension of Caveat' 'caveatable Interest' 'on Demand Loan' 'statute Barred Debt' 'mortgage Duty' 'unenforceable Security Agreement']
['property Law' 'equity' 'caveats' 'limitation of Actions' 'duties and Stamp Duty'] ['extension of Caveat' 'caveatable Interest' 'on Demand Loan' 'statute Barred Debt' 'mortgage Duty' 'unenforceable Security Agreement']

Case Brief

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Procedural Posture

Application Under S 74 K of the Real Property Act 1900 for an Order Extending the Operation of a Caveat / Principal Judgment

Legal Issues

  1. 1 ['Whether the plaintiff showed that the caveat had or may have substance for the purposes of s 74K of the Real Property Act 1900.' "Whether the purported loan agreement gave the plaintiff any estate or interest in the land, including Janet's undivided one-half share or Lynn's undivided one-half share." 'Whether the alleged debt of $400,000 repayable at call was statute barred.' 'Whether non-payment of mortgage duty made the purported agreement unenforceable.' 'Whether the description of the claimed interest in the caveat was adequate.']

Ratio Decidendi

The plaintiff had no enforceable estate or interest in the relevant land capable of supporting the caveat. The 29 January 1996 agreement could not affect Janet's undivided one-half share because she was not a party. As to Lynn's undivided one-half share, the alleged $400,000 on demand debt was statute barred before the caveat was lodged and before the 15 August 2007 demand, and the agreement was also unenforceable because mortgage duty had not been paid. Accordingly the plaintiff did not show that the caveat had or may have substance under s 74K.

Court Disposition

Order extending operation of caveat until further order discharged, so that there is no order in force for extension of the operation of the caveat.

Orders

  • ['The order made on 18 August 2008 extending the caveat until further order is discharged to the intent that there is no order in force for extension of the operation of the caveat.' "The plaintiff is to pay the defendants' costs of the application for the extension of the caveat."]