Waco Kwikform Limited v Jabbour [2010] NSWSC 1379

Waco Kwikform Limited v Jabbour [2010] NSWSC 1379

The plaintiff required leave under s 440J because the caveat extension proceeding was in relation to a guarantee of the company’s liability, but retrospective leave should be granted because the proceeding preserved the status quo, was not enforcement of the guarantee or charge, would not interfere with the administration, and refusal could materially prejudice the plaintiff. There was a serious question to be tried that the company owed a debt covered by the guarantee and indemnity and secured by an immediate charge over the defendant’s beneficial interests in land, which was a caveatable interest. With the plaintiff giving the usual undertaking as to damages and undertaking to file a...

Jurisdiction
Australia
Judgment Date
15 November 2010
Procedural Posture
Application Under S 74 K of the Real Property Act 1900 (nsw) to Extend the Operation of a Caveat, With Relief Under S 440 J of the Corporations Act 2001 (cth) / Interlocutory Application
Outcome
Retrospective leave under s 440J was granted and the caveat was extended until further order on undertakings by the plaintiff.
Legal Topics
['extension of Caveat' 'caveatable Interest' 'equitable Charge' 'guarantee and Indemnity' 'voluntary Administration' 'leave to Begin Proceeding in Relation to Guarantee' 'balance of Convenience']
['real Property' 'corporations'] ['extension of Caveat' 'caveatable Interest' 'equitable Charge' 'guarantee and Indemnity' 'voluntary Administration' 'leave to Begin Proceeding in Relation to Guarantee' 'balance of Convenience']

Case Brief

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Procedural Posture

Application Under S 74 K of the Real Property Act 1900 (nsw) to Extend the Operation of a Caveat, With Relief Under S 440 J of the Corporations Act 2001 (cth) / Interlocutory Application

Legal Issues

  1. 1 ['Whether the plaintiff required leave under s 440J of the Corporations Act 2001 (Cth) to bring proceedings to extend the caveat' 'Whether leave under s 440J could and should be granted retrospectively' 'Whether any debt was secured by the guarantee and indemnity' 'Whether the charge in the guarantee and indemnity created an interest in land or only in proceeds of sale' 'Whether failure to request execution of a mortgage or consent to a caveat was a reason not to extend the caveat' 'Whether the balance of convenience favoured extending the caveat' 'Whether the absence of a claim for final relief in the summons barred extension of the caveat']

Ratio Decidendi

The plaintiff required leave under s 440J because the caveat extension proceeding was in relation to a guarantee of the company’s liability, but retrospective leave should be granted because the proceeding preserved the status quo, was not enforcement of the guarantee or charge, would not interfere with the administration, and refusal could materially prejudice the plaintiff. There was a serious question to be tried that the company owed a debt covered by the guarantee and indemnity and secured by an immediate charge over the defendant’s beneficial interests in land, which was a caveatable interest. With the plaintiff giving the usual undertaking as to damages and undertaking to file a...

Court Disposition

Retrospective leave under s 440J was granted and the caveat was extended until further order on undertakings by the plaintiff.

Orders

  • ['Upon the plaintiff by its counsel giving the usual undertaking as to damages and also undertaking that within 21 days it will file a further amended summons claiming final relief, order that the operation of caveat AF660156F, lodged over the properties described in folio identifiers 60/35982 and 81/6/5701 and...