Hepler v Rosenblum [2005] NSWSC 179

New South Wales Supreme Court

CITATION : Hepler v Rosenblum [2005] NSWSC 179

HEARING DATE(S) : 2 March 2005

JUDGMENT DATE : 2 March 2005

JURISDICTION : Equity

JUDGMENT OF : Campbell J

DECISION : Caveat not ordered withdrawn

CATCHWORDS : CONVEYANCING - TORRENS SYSTEM - caveats against dealings - application for caveat to be withdrawn - whether serious question to be tried that there was agreement to give equitable charge over properties caveated - effect of lack of writing - whether estoppel can outflank section 54A Conveyancing Act 1919

LEGISLATION CITED : Conveyancing Act 1919

CASES CITED : Whittet v State Bank of New South Wales (1991) 24 NSWLR 146

Hepler Pty Limited - Plaintiff/Cross-Defendant PARTIES : Rupert George Rosenblum - Defendant/Cross-Claimant

FILE NUMBER(S) : SC 1701/05

L J Aitken - Plaintiff/Cross-Defendant COUNSEL : M Elliott - Defendant/Cross-Claimant

Summit Law - Plaintiff/Cross-Defendant SOLICITORS : M Rosenblum & Co - Defendant/Cross-Claimant

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY JUDGE LIST

CAMPBELL J

WEDNESDAY 2 MARCH 2005

1701/05 HEPLER PTY LTD v RUPERT GEORGE ROSENBLUM JUDGMENT – Ex Tempore (Revised 9 March 2005) 1 HIS HONOUR: This is the return of a summons seeking an order that a caveat be withdrawn. The land over which the caveat exists is stated to be folio identifier 1/1076301 - 6/1076301. Those properties are six properties located at Pidcock Street, Camperdown. In fact one of the properties had been sold, and had been sold before the caveat was lodged, but the caveat is still effective in relation to the remaining five. 2 The interest which the caveat claims is an equitable charge over the properties. The caveator is the executor of the estate of the late Ms Hoolahan. She advanced $50,000 to E-Lawnet.com.au Pty Ltd, on the terms of an investment memorandum dated 23 September 2003. The borrower is a company of which Mr Scott Hepburn is a director. The terms of the advance included that the borrower would only use the funds of $50,000 for property investment purposes "and to be secured by property assets as ELawnet.com.au Pty Ltd being a property holding company." [Sic] 3 Interest was payable, according to the loan agreement, monthly, at a rate of 11 percent. 4 Ms Hoolahan has died in August 2004.