Supreme Court New South Wales Medium Neutral Citation: Oxygen Funding Solutions Pty Ltd and Ors v Dick-Telfar and Anor [2020] NSWSC 1154 Hearing dates: 18 and 21 August 2020 Date of orders: 18 and 21 August 2020 Decision date: 28 August 2020 Jurisdiction: Common Law Before: N Adams J Decision: See [2] and [3] Catchwords: REAL PROPERTY – caveats – removal of caveats – previous possession proceedings after mortgage default – caveats lodged by defaultors and family members – requirement for a caveatable interest – balance of convenience Legislation Cited: Real Property Act 1900 (NSW), s 74H(5)(g), s 74MA, s 74 P Cases Cited: Bayblu Holdings Pty Limited v Capital Finance Australia Limited [2011] NSWCA 39 Catalyst Provisional Lending Pty Limited and Ors v Dick-Telfar and Anor [2020] NSWSC 79 Catalyst Provisional Lending Pty Ltd v Dick-Telfar [2020] NSWSC 324. Hanson Construction Materials v Vimwise Civil Engineering (2006) NSW ConvR 56-137; [2005] NSWSC 880 Oxygen Funding Solutions Pty Ltd v Dick-Telfar [2020] NSWSC 582 Sinclair v Hope Investments Pty Ltd [1982] 2 NSWLR 87 Category: Procedural and other rulings Parties: Oxygen Funding Solutions Pty Ltd (First Plaintiff/Applicant) Catalyst Provisional Lending Pty Ltd (Second Plaintiff/Applicant) John Ramsay (Third Plaintiff/Applicant) First Notice of Motion Robert William James Dick-Telfar (First Defendant) (Self-Represented) Kristin Lorna Cashman Venae-Telfar (Second Defendant) (Self-Represented) Second Notice of Motion Denisse Ann Cashman (First Respondent) (Self-Represented) Roy James Cashman (Second Respondent) (Self-Represented) Coral Therese Webber (Third Respondent) (Self-Represented) Representation: Counsel: D Edney (Plaintiffs) Solicitors: Summer Lawyers (Plaintiffs) File Number(s): 2018/00315828 Judgment 1. By Notice of Motion filed on 13 August 2020, the plaintiffs, Oxygen Funding Solutions Pty Ltd, Catalyst Provisional Lending and Mr John Ramsay ("the Lenders"), sought an order pursuant to s 74MA of the Real Property Act 1900 (NSW) that the defendants, Robert William James Dick-Telfar and Kristin Lorna Cashman Venae-Telfar ("the borrowers"), withdraw caveat AG234103 as lodged in respect of folio identifier 19/12/31637, being the land situated at and known as 164-164A Prince Edward Street, Malabar in the state of New South Wales ("the Malabar property") by Monday 17 August 2020. 2. This Motion came on for hearing before me in my capacity as Duty Judge on Tuesday, 18 August 2020. At the end of the hearing, I made the following orders: 1. An order pursuant to section 74MA of the Real Property Act 1900 (NSW) that the defendants withdraw caveat AQ234103 as lodged in respect of folio identifier 19/12/1637 being the land situated at and known as 164-164A Prince Edward Street, Malabar in the State of New South Wales by 4pm on Tuesday, 18 August 2020. 2. No order as to costs. 1. By Notice of Notion filed on 20 August 2020, the Lenders sought further orders pursuant to s 74MA of the Real Property Act that Denisse Ann Cashman and Roy James Cashman withdraw caveat AQ329887 in respect of the Malabar property by 5pm on Friday, 21 August 2020 and that Coral Therese Webber withdraw caveat AQ329888 in respect of the Malabar property by 5pm on Friday, 21 August 2020. 2. That Motion came before me on Friday 21 August 2020. At the end of the hearing, I made the following orders: 1. An order pursuant to section 74MA of the Real Property Act 1900 (NSW) that Denisse Ann Cashman and Roy James Cashman withdraw caveat AQ329887 as lodged in respect of folio identifier 19/12/31637 being the land situated at and known as 164-164A Prince Edward Street, Malabar in the State of New South Wales by 5pm on Friday, 21 August 2020. 2. An order pursuant to section 74MA of the Real Property Act 1900 9NSW) that Coral Therese Webber withdraw caveat AQ329888 as lodged in respect of folio identifier 19/12/31637 being the land situated at and known as 164-164A Prince Edward Street, Malabar in the State of New South Wales by 5pm on Friday, 21 August 2020. 3. No order as to costs. 1. These are my reasons for making these orders on 18 and 21 August 2020. Background 1. These proceedings arise out of a loan provided to the borrowers by the Lenders on 4 January 2018. The loan was in the amount of $691,700 for a period of three months from 3 January secured over the Malabar property. The details of the loan arrangements are set out in the judgment of Adamson J in Oxygen Funding Solutions Pty Ltd v Dick-Telfar [2020] NSWSC 582. Although some of the property dealings detailed in that judgment differ to what is contained in the land title documents provided to me, nothing turns on that for the purpose of these reasons. 2. On 4 January 2018, the borrowers paid the Lenders the establishment fee of $58,696, as well as three months' interest in advance of $83,004. The Lenders were the second Mortgagor; the first Mortgagor on the Malabar property was Permanent Mortgages Pty Ltd. 3. In April 2018, the borrowers attempted to refinance the loan. On 27 April 2018, the ANZ Bank offered to refinance the loan. From May to August 2018, several attempts were made by the borrowers to settle the loans but they were not able to raise sufficient finance. 4. In September 2018, the Lenders registered the mortgage which the borrowers had granted to them over the Malabar property. 5. On 20 September 2018, the borrowers' new solicitor, emailed the Lenders' solicitor and alleged that they had bound themselves in July 2018 to accept a pay-out figure of $749,606.58. This assertion was rejected by the Lenders on 27 September 2018. Instead, a further lender's certificate pursuant to cl 24 of the loan agreement was provided which specified a pay-out of $1,088,380 with an expiry date of 3 October 2018. 6. When no payment had been made by 16 October 2018, the Lenders commenced proceedings by statement of claim seeking possession of the Malabar property. 7. During 2019, the borrowers arranged to sell the property to prospective purchasers for the sum of $1.8 million. The Lenders managed to persuade the prospective purchasers to increase their offer to $2.325 million. The defendants then approached this Court for orders to restrain the sale. The delay occasioned by this meant that the sale did not proceed. 8. By 3 June 2019, the outstanding balance owing under the loan agreement was $1,590,910. Further details about the events at this time are set out in the judgment of Adamson J at [68]-[73]. 9. On 18 September 2019, the Lenders issued default notices to all caveators under s 57(2)(b) of the Real Property Act. 10. On 14 February 2020, Johnson J gave summary judgment to the Lenders and issued a writ of possession to them: Catalyst Provisional Lending Pty Limited and Ors v Dick-Telfar and Anor [2020] NSWSC 79. 11. There has been no appeal against that decision. 12. On 31 March 2020, the borrowers made application for a stay of the writ of execution before Harrison J. The application was refused: Catalyst Provisional Lending Pty Ltd v Dick-Telfar [2020] NSWSC 324. 13. On April 2020, Notices of Eviction were served at the Malabar property. The Lender obtained possession of the Malabar property on 15 April 2020. 14. On 12 and 13 May 2020, Adamson J heard the Lenders' claim for judgment for the amount owing by the borrowers pursuant to the loan agreement entered into on 4 January 2018. The defendants did not dispute the amount of the claim and accepted it was payable unless they made out their cross-claim. That cross-claim alleged an unconscionable interest rate, withholding of the certificate of title, frustration of further refinancing attempts and a failure to accept an agreed payout figure. 15. On 18 May 2020, Adamson J delivered her judgment. Her Honour dismissed the cross-claim and ordered that the borrowers pay the Lenders $2,351,780 and indemnity costs. 16. On 17 June 2020, a contract of sale was entered into for the sale of the Malabar property for $2.5 million. Settlement was later scheduled for Wednesday 19 August 2020. 17. On 30 July 2020, the borrowers placed a caveat on the title to the Malabar property. In Schedule 1 of the caveat the facts which gave rise to their stated interest was "[i]mproper dealing with sale of the property. transaction not at arms length sale. Not followed in fiducial manner."[sic] 18. On 13 August 2020, the Lenders filed the present Motion. Material relied upon at the Motion 1. Mr Edney of counsel appeared for the Lenders. In support of the Motion, he relied upon an affidavit of Stephanie Soo Yeon Jin sworn 13 August 2020 with annexures. I had the opportunity to read that affidavit and the judgments of Johnson, Adamson and Harrison JJ before the hearing commenced. The adjournment application 1. Mr Dick-Telfar appeared by way of telephone. He was not legally represented. He applied for an adjournment on the basis that Carroll and O'Dea Solicitors had previously acted for him but had recently ceased to do so. He sought time to obtain legal representation. 2. I invited Mr Dick-Telfar to explain his basis for placing a caveat on the title to the Malabar property. His explanation was as follows: 1. He "believed" that the sale was not an "arms length transaction". 2. He "believed" that there was an improper dealing occurring in relation to title because all the caveators on the property had been represented by Summer Lawyers and Summer Lawyers represented the Lenders. In 2018 and 2019, when the defendants were attempting to refinance the property, the caveators had failed to consent yet they now consented for the purposes of this sale. 3. The dispute was about how the amount originally borrowed escalated to the amount of money finally owed. 1. Mr Dick-Telfar did not suggest that the sale was for a price below its value, only that he believed it was not "at arms length." 2. In response to this allegation, I enquired of Mr Edney if he knew anything about who the purchaser was and/or who was representing them. Mr Edney informed me that counsel for the purchasers was listening to the hearing on the telephone by way of a "watching brief". When I became aware that Mr Stapleton of counsel was listening to the proceedings, in his capacity as counsel for the purchasers, I repeated the questions I had asked of Mr Edney. Mr Stapleton confirmed that his client was not connected with the Lenders nor was he instructed by Summer Lawyers, as alleged by Mr Dick-Telfar but, rather, by a conveyancer in North Sydney. Refusal of adjournment 1. I ruled at the time that I did not propose to adjourn the Motion. My reasons for that can be briefly stated. 2. First, despite being provided with numerous opportunities to explain the basis for personally placing the caveat on the property and, more specifically, his repeated "belief" that the sale was not at "arms' length", he was unable to do so beyond a general assertion that the sale was "dodgy" and that he simply "believed" it was not at arms' length. 3. Secondly, Mr Dick-Telfar did not contend that the sale price of $2.5 million was undervalued. 4. Thirdly, the settlement was due the following day. There could be prejudice to the Lenders if there was further delay for no apparent reason. 5. Finally, it was clear that, although he had been legally represented at the hearings before both Johnson J and Adamson J, Mr Dick-Telfar did not obtain legal advice before he placed the caveat on the Malabar property shortly before the sale. He did so in circumstances where he and his wife have not appealed either the decision of Johnson J or Adamson J. 6. For these reasons, I considered that the interests of justice did not favour an adjournment and I turned to consider the Motion The Notice of Motion 1. In addition to the affidavit of Ms Jin to which I have already referred, Mr Edney also relied upon an affidavit of service of John Floridis sworn 14 August 2020. This affidavit of service confirmed that both Mr Dick-Telfar and his wife, Ms Venae-Telfar, had been served with the Notice of Motion and accompanying documents. 2. I sought confirmation from Mr Dick-Telfar that he represented the interests of both he and his wife. He indicated that he needed to speak to his wife. I adjourned the proceedings for ten minutes in order for that to occur. After the adjournment, Ms Venae-Telfar appeared by way of telephone in addition to her husband. She sounded distressed. She indicated that she had had no objection to her husband placing the caveat on the property but did not wish to be involved in the Motion because of the negative impact this litigation has had on her health. Despite this, she wished to explain her position and I afforded her the opportunity to do so. 3. Ms Venae-Telfar stated that her and her husband's concern was that the current purchasers of the property were a "front" for the occupiers of the neighbouring property. Her concern was that it did not make sense "to attempt to purchase the property unless there's some sort of improper conduct going on". She further stated that the Lenders had represented that they were reasonable but, in her opinion, they had not been reasonable at the time that she and her husband were attempting to repay the loan. She stated that the property had been the family home and previously ten people had lived in it who had now been displaced. She also added that she was suspicious of the caveators represented by Summer Lawyers because those caveators would not accept partial payment in 2018 but in 2020 were prepared to remove their caveats for this sale to go ahead. 4. After making these submissions, Ms Venae-Telfar withdrew from the proceedings leaving Mr Dick-Telfar to appear alone. 5. Mr Dick-Telfar did not add anything of significance to the submissions he had made on the adjournment application save as to indicate that he proposed to appeal the decision of Adamson J. I noted that the three months for doing so expired that day. He informed the Court that he proposed to obtain new lawyers to file an appeal. Consideration 1. The principles that govern applications of this kind were described by Campbell JA (with whom Tobias and Macfarlan JJA agreed) in Bayblu Holdings Pty Limited v Capital Finance Australia Limited [2011] NSWCA 39 at [20] in the following terms: "The primary judge correctly proceeded on the basis that on an application for an order to remove a caveat it is not necessary for the court to make a final determination as to the interest claimed by the caveator or a final determination as to the priority that the caveator may or may not have over competing interests. Rather, the court should enquire whether the caveator would have been granted an interlocutory injunction to protect the interests that the caveator claimed in the caveat. If no such interlocutory injunction would have been granted the caveat should be ordered to be withdrawn." 1. The interest protected by a caveat must be a legal or equitable interest in land, a mere contractual or personal right will not suffice: Sinclair v Hope Investments Pty Ltd [1982] 2 NSWLR 870. 2. An interest that would give the borrowers a caveatable interest is not set out in terms of the caveat itself, as is required: Hanson Construction Materials v Vimwise Civil Engineering (2006) NSW ConvR 56-137; [2005] NSWSC 880 at [29]-[31] (Campbell J). As outlined above, Mr Dick-Telfar was not able to articulate the interest he claimed besides a desire to stop the sale because he believed it to be not at "arms length". 3. Mr Dick-Telfar's main complaint largely concerned matters that have already been considered by Adamson J in her judgment on 18 May 2020. He sought to re-litigate them before me but, as I explained to him, a decision has already been made on those issues and the avenue now is an appeal to the Court of Appeal, not a re-litigation of the issues before me. Although he raised new material concerning the current sale, it seemed that his reason for lodging the caveat was because, having formed a view that the Lenders had acted unreasonably back in 2018 and 2019, it must be the case that they are also acting unreasonably regarding the sale. 4. Ms Venae-Telfar's complaint was that if the Australian Securites & Investments Commission or the Australian Prudential Regulation Authority had been involved in this matter, the actions of the Lenders could have been exposed. She wanted those entitles involved before the sale took place. The difficulty with this suggestion is that any claim of unconscionability has already been addressed in the decision of Adamson J and, in any event, the borrowers could not have been said to have been vulnerable (in the legal sense) and were legally represented. 5. Both of the borrowers complained that it was suspicious that the other caveators (represented by the same law firm as the Lender) had objected to the lifting of the caveats when the borrowers had tried to re-finance last year but did not object to the current sale. This was said to support the contention that the sale was "dodgy". The difficulty with this submission, as Mr Edney pointed out, was that there is a significant difference between a caveat being removed so that the borrower can refinance as opposed to a registered mortgagee selling the property: s 74H(5)(g) Real Property Act. 6. As for the complaint that it was suspected that the purchaser was their next door neighbour who had somehow arranged with the Lender in some unspecified way to force the borrowers into the sale, the identity of the purchaser is irrelevant. As I have already stated, there was no suggestion that the sale was for less than market value. Nor would there be any basis for the borrowers to have a "fire sale". Given that the First Mortgagor is owed approximately $1.8 million, the $700,000 difference will not even cover a third of what the Lenders are owed by the borrowers. 7. There is no doubt that the borrowers feel that they have been dealt with unfairly. It seems extraordinary that a loan for approximately $600,000 could increase to one of $2.5 million in the space of two years. The difficulty for the borrowers is that they entered the loan agreement knowing that the interest rates were 4% a month with a default rate of 10% a month. As Adamson J observed in her judgment at [79]-[80]: "It is plain that interest rates of 4% per month and, a fortiori 10% per month will result in outstanding interest exceeding the principal within a relatively short period. Such rates will be attractive only to the naïve, the ill-advised or the desperate. It was not suggested that the defendants fell into either of the first two categories. The rates are such that any prospect of refinancing the debt with a reputable lender, such as a bank, is likely to quickly disappear. One only has to compare the "lower" rate of 4% per month (48% per annum) which applied for the loan from the plaintiffs with the rate of 4.7% per annum offered by the ANZ to appreciate the uplift applied by lenders such as the plaintiffs on monies advanced by them. Loans on the terms advanced by the plaintiffs have such a high risk of default that it is almost inevitable that any property secured will have to be sold and that any equity held by the borrowers will be extinguished by the passage of time, consumed at a voracious pace by the interest. However, courts have consistently held that, as long as the provisions for the lower and higher rates of interest are drafted in such a way as to make clear that the lower rate is payable by way of a discount, or reward, for timely payment and the higher rate is the rate otherwise applicable, the rate does not amount to a penalty and the lender's conduct is not unconscionable. Thus, it is irrelevant that 10% cannot possibly be a genuine pre-estimate of the plaintiffs' loss if the payment at 4% is not made on time since this is not the test. While trial judges and intermediate courts have railed against the consequences of this distinction, which is to immunise the result of a drafting device from scrutiny on the basis of equitable principles relating to penalties and unconscionability, it has been said, time and again, that the principle is too well established to be disturbed other than at the highest level, by the High Court or by Parliament: Kellas-Sharpe at [2]-[4] (Margaret McMurdo P), [32]-[49] (Gotterson JA) and [57]-[60] (Fryberg J)." 1. I was not satisfied that there was a serious question to be tried that the borrowers had a caveatable interest in the Malabar property. Accordingly, I ordered the caveat be lifted by 4 pm on 18 August 2020. The Second Notice of Motion 1. At 2:30pm on Thursday 20 August 2020, the solicitors for the Lenders approached my chambers by email requesting that I hear a further related Notice of Motion on an urgent basis, at midday on Friday 21 August 2020. That Motion sought two further orders under s 74MA of the Real Property Act. The need for the further motion arose from the fact that, after the caveat placed by Mr Dick-Telfar was withdrawn by him, three other family members placed two further caveats on the Malabar property. I have set out the orders sought on this second occasion above at [4]. 2. I listed the matter on an urgent basis and granted leave to file the Motion and supporting documents on the three respondents to the application, Mr and Mrs Cashman and Ms Webber, electronically. The Hearing of the second Notice of Motion 1. At the hearing of the second motion Ms Cashman appeared by telephone unrepresented and confirmed that she represented the interests of her husband Mr Cashman. Ms Webber also appeared unrepresented by telephone. The two borrowers also appeared by way of telephone. Mr Edney of counsel again appeared for the Lenders. Ms Webber is 85 years old and became upset so I granted leave for Ms Cashman's daughter Rebecca Venae to speak on her behalf. It became clear during the proceedings that Ms Cashman is also the mother of Ms Venae-Telfar. The evidence 1. Ms Cashman relied upon certain documents she had forwarded to my chambers prior to the hearing by way of email. Those documents were as follows: 1. A Deed dated 30 May 2014 between Mr Cashman, Ms Cashman and Ms Webber and Mr Dick-Telfar and Ms Venae-Telfar. This Deed sets out the terms of the agreement whereby Mr and Ms Cashman and Ms Webber (who at that time owned the Malabar property as tenants in common) transferred title of the property to the borrowers in exchange for a life tenancy. It was subject to a mortgage of approximately $275,000 in favour of the Commonwealth Bank. In return for transfer of ownership, the borrowers agreed to borrow approximately $452,000 to discharge this mortgage, pay stamp duty and legal expenses, and credit card liabilities. To do this, they took out a registered mortgage with Pepper Finance. 2. A certificate of independent advice, dated 15 May 2014, by Mr Paul Leslie Burton (a solicitor) in relation to the granting of a life residency to Mr Cashman, Ms Cashman and Ms Webber in exchange for the transfer of their shares in the ownership of the Malabar property to Mr Dick-Telfar and Ms Venae-Telfar. 3. A certificate of independent legal advice from the same solicitor, dated 7 April 2014, in relation to a "Granny Flat Agreement". 4. A letter to Mr Paul Burton from John Kenny at Patrick Hargreaves & Co, dated 14 May 2014, indicating that Mr Cashman, Ms Cashman and Ms Webber had made undertakings that they would not lodge caveats on the title of the Malabar property if the mortgagee's power of sale was exercised (this was in relation to the loan from Pepper Finance to Mr Dick-Telfar and Ms Venae-Telfar dated 23 May 2014). 1. Two clauses in the were as follows: "Clause 3(d) Neither of [the borrowers] will grant any further mortgage, charge, lien or other interest over their interest in the property save that Robert and Kristin shall be entitled to borrow on security of the Malabar property for building works at the Malabar property and for any business finance loan required by Robert and Kristin. Clause 4.1 In the event of a sale of the property by a mortgagee or for any other reasons beyond the control of the Life Residents and the Owners then the net proceeds of sale of the Malabar property shall be utilised by the Owners, inter alia, for the provision of substitute accommodation for those then alive of Coral, Denisse and Roy." 1. The Land Titles documents annexed to the affidavit of Ms Jin, record that the debt to Pepper Finance was subsequently discharged and the mortgage removed. Then, in 2017, a mortgage was placed on the property by Permanent Mortgages Pty Ltd in consideration for a loan of $1,406,200 to Mr Dick-Telfar and Ms Venae-Telfar. After this, on 24 May 2018, a caveat was lodged by Axsess Finance over the interest of Ms Venae-Telfar. On 24 July 2018, a further caveat was lodged over both Mr Dick-Telfar and Ms Venae-Telfar's interests by Ankat Investments Pty Ltd. 2. On 3 January 2018, the relevant mortgage to Catalyst and Oxygen was entered into. A caveat was registered by Joseph Essey on 18 October 2018. On 19 December 2018, another caveat was lodged by SR Legal. On 7 February 2019, another caveat was lodged by Australian Liquor Marketers, which was recorded as protecting an equitable charge for a sum of $20,770.83. On 12 February 2019, Toohey Pty Ltd registered a caveat. On 14 March 2019, Bacchus Wine Merchant registered a caveat. 3. On 7 March 2019, Craig Pearson, Jarryd Brett McDonald and Elise Marie McDonald registered caveats. On 8 May 2018, the Property Xchange registered a caveat. On 26 June 2020, Troy Anthony Barnes and Paula Marie Barnes registered a caveat pursuant to an interest arising out of a contract of sale. On 3 August 2020, Haverick Meats Pty Ltd registered a caveat arising out of "a Guarantee given in connection with a Credit Application to the Caveator by Haverick Meats Pty Limited". Application for adjournment 1. The three new caveators all sought an adjournment to obtain legal advice. In addition to the documents I have summarised above, they made the following submissions as to why these two caveats had been lodged and why an adjournment was necessary. 2. Ms Webber explained that it was her understanding that only one loan had been taken out over the property as per the agreement made in 2014. She stated that it was "unknown" to them that lenders continued to lend money to the borrowers. She only knew about the eviction 14 days before it was to take place. She did not know how a loan of $671,000 could become one of $2.3 million. She said that she had thought "that [their] interests were safe". 3. It was stressed by Ms Venae that the placing of the caveats was not malicious; the caveators had all previously owned the Malabar property and thought that they still had an interest in it because they had signed the "Granny Flat Agreement" for a life tenancy. They were also concerned about the identity of the incoming purchaser of the property. 4. After these explanations were provided, I informed the caveators of the orders made by Johnson and Adamson JJ. I also informed them that, as yet, there had been no appeals as against those decisions. I then informed the caveators that, if I was to adjourn the matter for them to obtain legal advice, there were two problems they might face. First, they stood to be liable for the costs of today and the hearing date if an order was made by the Court that the caveats be lifted. Secondly, they potentially stood to be liable for proceedings brought under s 74P of the Real Property Act if the Lenders could establish that there was no reasonable ground for them to lodge the caveats and that the Lenders had suffered damage as a result. 5. I then took a ten-minute adjournment for the caveators to consider their position. 6. When court resumed, Mr Edney placed on the record that he had instructions not to seek costs or make any application under s 74P if the caveators agreed to withdraw the caveats today. All three of them agreed to do so. 7. Although, ultimately, the orders were made by consent, I have provided these reasons to make clear that, based on the background I have set out above, if the caveats had not been withdrawn by consent, I would not have granted the adjournment and would have made the orders sought requiring them to do so. There was no serious question that the three caveators had any interest in the Malabar property. 8. It is to be accepted that the caveators filed these last two caveats without legal advice and belatedly. But having heard the distress of the family members who have all been evicted because the borrowers could not repay their loans, I was satisfied that there was no intent to abuse the court process in doing so. Rather, it became apparent during the hearing that these three new caveators were not aware of the history of the matter, nor, in particular, the decisions of Johnson J and Adamson J. Further, the terms of the deed clearly permitted Mr Dick-Telfar and Ms Venae-Telfar to borrow against the property so long as it was for "building works at the Malabar property and for any business finance loan required by Robert and Kristin". 9. It is understandable that the three new caveators are having difficulty processing the fact that they have lost their family home through the combination of transferring title to the borrowers and the borrowers over-extending themselves. But once it was understood by them that the Lenders had been granted possession of the Malabar property for the purposes of sale in February 2020, and the complaints about the alleged unconscionable conduct of the Lenders had already been determined in favour of the Lenders in May 2020, the three caveators agreed to withdraw the caveats DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 August 2020