Hanover Investments v Registrar General [1999] NSWSC 21

New South Wales Supreme Court CITATION : Hanover Investments v Registrar General [1999] NSWSC 21 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 001133/99 HEARING DATE(S) : 27 January; 1999 JUDGMENT DATE : 27 January 1999

(Plaintiff) Hanover Investments Pty Limited PARTIES : v (Defendant) Registrar General JUDGMENT OF : Sperling J

COUNSEL : For Plaintiff: T G R Parker SOLICITORS : Plaintiff: Windeyer Dibbs Defendant: W L Wright, Land Titles Office CATCHWORDS : Real property - caveat - whether second caveat in respect of the same interest - whether the proviso operated - whether leave should be granted ACTS CITED : Real Property Act s 740 DECISION : Leave granted to lodge further caveat

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

SPERLING J

WEDNESDAY 27 JANUARY 1999

001133/99 - HANOVER INVESTMENTS PTY LIMITED. V . REGISTRAR GENERAL.

JUDGMENT:

HIS HONOUR: Section 74O of the Real Property Act 1900

provides, so far as is material, that where a caveat lapses any further caveat by the same caveator in respect of the same estate or interest and purporting to be based on the same facts has no effect unless the Supreme Court has made an order giving leave for the lodgment of the further caveat and that order or an office copy of it accompanies the further caveat when lodged with the Registrar General. Section 74L provides, so far as is material, that if in any legal proceedings a question arises as to the validity of a caveat the court shall disregard any failure to comply strictly with the requirements of the subject part of the Act. The facts deposed to in these proceedings are in summary and so far as is material as follows. It is asserted that monies to which the plaintiff had an entitlement in equity were used in substantial part to discharge a mortgage over the subject property and to effect repairs and improvements to the subject property. On 30 June 1998 a caveat was lodged in respect of the property by the present plaintiff Hanover Investments Pty Limited being the party claiming the relevant interest arising from the application of the monies to which I have referred. That caveat was registered on 13 July 1998. In that caveat the nature of the estate or interest in the land claimed by the caveator was as follows: "Equitable interest as beneficiary of a constructive trust, the registered proprietor having received and unconscionably used the caveator's money in discharge of a mortgage over the property and effecting repairs and improvements thereto".