Sutherland v Vale [2008] NSWSC 759

New South Wales Supreme Court

CITATION : Sutherland v Vale [2008] NSWSC 759

HEARING DATE(S) : 30 May 2008 JURISDICTION : Equity Division Duty Judge List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 30 May 2008

DECISION : Summons dismissed with costs.

CATCHWORDS : REAL PROPERTY – TORRENS TITLES – CAVEATS – BANKRUPTCY – caveatable interests – where bankrupt transferred joint tenancy interest in land to spouse for $1 consideration – where trustee of bankrupt estate issued a notice pursuant to Bankruptcy Act 1966, s 139ZQ, to bankrupt's spouse – where notice set aside but appeal pending to Federal Court – where caveat claims "equitable interest" – where application to Court made for the purpose of extending operation of caveat in aid of appeal in Federal Court – whether caveator's claim in the caveat "has or may have substance" – test for determining whether claim "has or may have substance" – whether nature of interest was sufficiently described in the caveat – whether caveator sufficiently complied with (NSW) Real Property Regulation 2003, cl 7 – whether Bankruptcy Act, ss 120 and 121 create a caveatable interest – whether charge created by Bankruptcy Act, s 139ZR(1) is a caveatable interest – where s 139ZR(1) charge did not exist at time caveat lodged – where caveat discloses no connection with s 139ZR(1) – DISCRETIONARY CONSIDERATIONS – where trustee has not administered bankrupt estate or brought proceedings expeditiously – whether more appropriate remedy to aid appeal in Federal Court is to seek an interlocutory injunction from that Court – where sufficient security retained for trustee's claim.

(CTH) Bankruptcy Act 1966, ss 120, 121, 139ZQ, 139ZR LEGISLATION CITED : (NSW) Real Property Act 1900, ss 74F, 74K (NSW) Real Property Regulation 2003, cl 7, Sch 3