Nationlink Solutions Pty Ltd v FHT Nominees Pty Ltd [2022] NSWSC 1479

Supreme Court New South Wales

Medium Neutral Citation: Nationlink Solutions Pty Ltd v FHT Nominees Pty Ltd [2022] NSWSC 1479 Hearing dates: 18 October 2022, further written submissions 25 October 2022 Decision date: 31 October 2022 Jurisdiction: Equity Before: Peden J Decision: (1) The orders of Hammerschlag CJ in Eq on 7 October 2022 extending the operation of the Caveat AS406917 cease to have effect as of 31 October 2022. (2) Plaintiff to pay the Defendant's costs as agreed or assessed. (3) Plaintiff's Notice of Motion filed 20 October 2022 is dismissed. (4) Plaintiff to pay the Defendant's costs of the Motion as agreed or assessed. Catchwords: CAVEAT — Application for extension of caveat — Where loan agreement provided lender with an entitlement to register a caveat over the borrower's property upon default — Where plaintiff is assignee of lender's rights — Where borrower's property is a unit holding in a unit trust — In those circumstances whether interest in land claimed by caveat is adequately described — Whether agreement granting authority to lodge caveat by implication confers such an interest in land as will sustain caveat — Form of caveat defective — Order that caveat be removed Legislation Cited: Real Property Act 1900 (NSW) ss 74H, 74K, 74L, 74MA, 74O Cases Cited: Aged Care Services Pty Ltd v Kanning Services Pty Ltd (2013) 86 NSWLR 174 Andrews v Wilcox [2008] NSWSC 280 Bellissimo v JCL Investment Pty Limited [2009] NSWSC 1260 Binningup Nominees Pty Ltd as Trustee for the Lakewood Shores Unit Trust v Brogue Tableau Pty Ltd [2004] WASC 14 BP Australia Ltd v Nabalco Pty Ltd (1977) 16 ALR 207 BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 Chao v Chao (No 2) [2008] NSWSC 612 Charles v Federal Commissioner of Taxation (1954) 90 CLR 598 Coleman v Hart-Hughes [2017] NSWSC 656 CPT Custodian Pty Ltd v Commissioner of State Revenue (2005) 224 CLR 98 Fitzgerald v Masters (1956) 95 CLR 420 Friend v Sole [2013] NSWSC 1046 Iaconis v Lazar [2002] NSWSC 1103 Redglove Projects Pty Ltd v Ngunnawal Local Aboriginal Land Council [2004] NSWSC 880 Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 Stonebark Pty Ltd v Disage Pty Ltd [2022] NSWSC 1015 Taleb v National Australia Bank Ltd (2011) 82 NSWLR 489 Ta Lee Investment Pty Ltd v Antonios [2019] NSWCA 24 Troncone v Aliperti (1994) 6 BPR 13,291 United Group Rail Services Ltd v Rail Corporation New South Wales (2009) 74 NSWLR 618 Walker Group Constructions Pty Ltd v Tzaneros Investments Pty Ltd (2017) 94 NSWLR 108 Texts Cited: Kim Lewison and David Hughes, The Interpretation of Contracts in Australia (1st ed, 2012, Lawbook Co) Category: Principal judgment Parties: Nationlink Solutions Pty Ltd (Plaintiff) FHT Nominees Pty Ltd (Defendant) Representation: Counsel: N Kirby (Plaintiff) P Newton SC (Defendant)