Miro v Fu Pty Limited [2003] NSWSC 1009

New South Wales Supreme Court

CITATION : Miro v Fu Pty Limited [2003] NSWSC 1009 HEARING DATE(S) : 25 and 26 September 2003 JUDGMENT DATE : 26 September 2003 JURISDICTION: 4882/03 JUDGMENT OF : Windeyer J at 1 DECISION : Summons dismissed

CATCHWORDS : REAL PROPERTY - caveats - whether caveator fourth mortgagee bound to consent to refinancing of mortgages taking priority when total amounts secured in priority are probably increased - SOLICITORS - contracts for sale of land - clauses with conflicting purchase prices - no consideration for reduction in price - duty of solicitors not to mislead Laurence Raymond Miro (First Plaintiff) PARTIES : Greenwood Management Pty Limited (Second Plaintiff) Fu Pty Limited (Defendant) FILE NUMBER(S) : SC 4882 of 2003 COUNSEL : Mr M Broun QC with him Mr Loxton (Plaintiffs) Mr DE Grieve QC (Defendant) SOLICITORS : L R Miro & Co (Plaintiffs) Miltons (Defendant)

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

WINDEYER J

FRIDAY 26 SEPTEMBER 2003

4882/03 L R MIRO & ORS V FU PTY LTD JUDGMENT 1 HIS HONOUR: By summons filed on 18 September 2003 the plaintiff seeks: (1) a declaration that a trust called the Deemain Family Trust does not exist; (2) in the alternative a declaration that if it does exist the defendant Fu Pty Ltd is not a trustee of the trust; (3) a declaration that the defendant has no caveatable interest in the land described in the schedule, and (4) an order that a caveat 9952746 affecting that land, lodged by the defendant be removed. 2 It is now acknowledged by the plaintiff that the trust exists, that Fu Pty Ltd is trustee of the trust and as trustee is entitled to a fourth mortgage over the land in question. It is also acknowledged that in those circumstances it has a caveatable interest in the property. As it has a caveatable interest to secure the amount due under the fourth mortgage, namely, $550,000, it is difficult to see any basis upon which the order for removal would be made unless some other security of an appropriate kind were offered, which it has not been.