14 Dec 2023
Because the caveat was lodged after the applicant's registered mortgage and the applicant, as registered mortgagee, holds an indefeasible priority interest and has lawfully exercised its power of sale, the caveat was subordinate and had to be removed under s142 LTA 2017.
14 Dec 2023
The caveat was removed because the respondent failed to demonstrate equitable interests sufficient to impinge on the mortgagee's registered power of sale; prior High Court decisions with materially identical claims support that such asserted interests do not prevent sale; therefore removal under s 142 was warranted.
13 Dec 2023
The application for a stay was dismissed because HND, as registered mortgagee with indefeasible title, would be significantly injuriously affected by a stay (unable to complete contracted sales), the appeal lacked any real prospect of success and was not bona fide, and the overall balance of convenience favoured HND.
10 Jan 2023
No serious issue to be tried: no admissible evidence that respondent directly represented it would provide development finance; loan documentation and contemporaneous records show the facility was a short‑term bridging loan; responsible lending rules did not apply to the commercial loan; plaintiffs were advised; balance of convenience favoured respondent because security was offered as investment property, debt exceeded security and damages were adequate. Therefore interim injunction declined and without‑notice orders revoked.
9 Dec 2022
The caveators demonstrated clearly arguable equitable interests in the properties and, given existing High Court findings (Jagose J) favouring specific performance and the fact the caveats were lodged prior to transfer of the mortgage interest, the applicant failed to show the caveators would derive no legitimate benefit from maintaining their caveats; accordingly the court refused to remove the caveats and dismissed the applications.
7 Nov 2022
The contractual deeds executed by the parties and the registered mortgage established that Mr Church (not the Trust) was the creditor and that Benhar and Ellis acknowledged indebtedness and granted security; allegations about the source of funds and cancellation of the guarantee lacked substance; PLA notices were valid (any clerical overclaim was corrected) and delay was not unreasonable; Benhar failed to show a serious question to be tried so interlocutory relief was not available.
26 Oct 2022
Plaintiffs failed to show a serious question to be tried that affects the validity of the mortgage or the mortgagees' right to exercise the power of sale; alleged defects (equitable interest, s121 non-compliance, oppressive interest) give rise to damages or relate to other parties and do not restrain sale, so interim injunction is declined.
9 Aug 2022
Court held the rights to recover the secured debts were statute barred as against Able Ventures because no s47 acknowledgement by its sole director revived limitation; applicant failed to discharge the onus to justify discharge under s105 LTA 2017 and the mortgages were not discharged; however court found on available evidence that K Bolton held the named mortgage interests on constructive trust for the second defendants and ordered transfer of mortgages B.388436.5 and M6484677.2 to the second defendants, reserving leave on the 2001 mortgage and on personal liability issues of the Bells.
27 Jul 2022
The interim injunction was granted because there is a serious question to be tried that the loan was oppressive and likely to have been advanced on the basis of an unfulfilled promise of a development loan, the balance of convenience favours preserving the applicants' sole family home while the substantive issues are determined, and Extension Capital would suffer limited prejudice from a stay; the injunction is conditional on an undertaking as to damages.
13 Oct 2021
Leave to appeal was dismissed because the Court of Appeal was entitled to conclude it was reasonably arguable the 19 June 2017 default notice effectively asserted funding would not be provided, giving rise to an arguable right to damages and set-off, and that subsequent negotiations did not obviously amount to affirmation; no appearance of a miscarriage of justice justified granting leave.