Raulfs v Fishy Bite & Ors [2008] NSWSC 1195

New South Wales Supreme Court

CITATION : Raulfs v Fishy Bite & Ors [2008] NSWSC 1195

HEARING DATE(S) : 28/10/08 and 30/10/08

JUDGMENT DATE : 30 October 2008

JURISDICTION : Equity

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 30 October 2008

DECISION : Order that the plaintiff's notice of motion filed on 17 October 2008 be dismissed.

CATCHWORDS : REAL PROPERTY – caveats – application for extension of a caveat – serious question to be tried that plaintiff has a beneficial interest in the property of which the third defendant is the registered proprietor – balance of convenience – undertaking by third defendant not to object to lodgement of a caveat on the title of another property owned by a company she controlled – extension refused - EQUITY – equitable rights and remedies – tracing – interlocutory application for the extension of a caveat – prima facie case that first defendant misapplied partnership funds – funds used to reduce a mortgage debt owed by second and third defendants – second and third defendants were volunteers – serious question to be tried whether plaintiff is subrogated to the position of the mortgagee in respect of the moneys used to reduce the mortgage debt and retains in personam rights against third defendant despite registration

LEGISLATION CITED : Property (Relationships) Act 1984 (NSW) Real Property Act 1900 (NSW)

Boscawen v Bajwa [1995] 4 All ER 769; [1996] 1 WLR 328 Butler v Rice [1910] 2 Ch 277 In re Diplock [1948] Ch 465 CASES CITED : Chetwynd v Allen [1899] 1 Ch 353 Banque Financiere de la Cite v Parc (Battersea) Ltd [1999] AC 221 Westpac Banking Corporation v Adelaide Bank Limited [2005] NSWSC 517; (2005) 12 BPR 22,919; (2006) NSW ConvR 56-133 Canny Gabriel Castle Jackson Advertising Pty Ltd v Volume Sales (Finance) Pty Ltd (1974) 131 CLR 321 In re Fuller's Contract [1933] Ch 652