IWC Industries Pty Ltd v Union Fidelity Capital Funding Pty Ltd [2022] NSWSC 1312

Supreme Court New South Wales

Medium Neutral Citation: IWC Industries Pty Ltd v Union Fidelity Capital Funding Pty Ltd [2022] NSWSC 1312 Hearing dates: 16 September 2022 Date of orders: 16 September 2022 Decision date: 16 September 2022 Jurisdiction: Equity Before: Kunc J Decision: Caveat to be withdrawn on terms that an identical caveat may be lodged after registration of incoming mortgagee's security Catchwords: LAND LAW — Caveats — Removal of caveat — Removal by order of court — Where caveator will be adequately protected by leave to file identical caveat after incoming mortgagee's security has been registered Legislation Cited: Real Property Act 1900 (NSW) Cases Cited: George Bevan Pty Ltd v Robert Patrick Pty Ltd (1987) 4 BPR 9457 Category: Procedural rulings Parties: IWC Industries Pty Ltd (Plaintiff)

Union Fidelity Capital Funding Pty Ltd (Defendant) Representation: Counsel:

J Wydell (Plaintiff)

JP Redmond (Defendant)

Solicitors:

Citilawyers (Plaintiff) File Number(s): 2022/273521 Publication restriction: No

Ex Tempore Judgment (revised)

Summary 1. This judgment resolves an urgent application brought in the Duty List for the removal of a caveat. For the reasons which follow, the Court has determined that the caveat is to be removed but on terms that the caveator will be entitled to file a further caveat in identical terms after the plaintiff has refinanced the property which is burdened by the caveat.

The facts 1. The plaintiff (IWC) is the registered proprietor of land at Killarney Heights (the property). The defendant (Union Fidelity) is a lender or, perhaps more accurately, an intermediary which connects parties who wish to lend money with potential borrowers. 2. The ultimate issues in this case are whether on or about 1 February 2022, IWC and Union Fidelity entered into an agreement, referred to as a "prospective approval indication", for the provision of finance (the agreement); and, whether or not the agreement gave Union Fidelity a security interest in the property for certain fees irrespective of whether or not funds were ultimately advanced through Union Fidelity to IWC. In the events which happened, no such funds were advanced. 3. Union Fidelity has lodged a caveat (the caveat) over the property in purported reliance on the rights which it says are conferred upon it by the agreement to secure an amount of approximately $116,000 in fees. IWC wishes to refinance a mortgage which it has over the property. Standing in the way of that refinancing is the caveat. IWC has today moved the Court for an order under 74MA of the Real Property Act 1900 (NSW) that the caveat be withdrawn.