Country Law Services v Duff [2007] NSWSC 1509

New South Wales Supreme Court

CITATION : Country Law Services v Duff [2007] NSWSC 1509

HEARING DATE(S) : 07/12/07, 11/12/07

JUDGMENT DATE : 12 December 2007

JURISDICTION : Equity

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 12 December 2007

DECISION : 1. Order that the summons be dismissed; 2. Order that the plaintiff pay the defendants' costs.

CATCHWORDS : REAL PROPERTY – Torrens title – Caveat – Application to extend caveat – Caveatable interest comprising mortgage granted by defendant to plaintiff – Where director of plaintiff company was defendants' solicitor at time of entry into mortgage and loan agreement – Solicitor in a position of conflict between duty to defendants and personal interest in lending company – Circumstances requiring that, for consent to be fully informed, defendants would need to have been informed of their rights and obligations under the mortgage and loan as well as related transactions with plaintiff which may have influenced their decision to execute mortgage – Prima facie invalidity of mortgage not rebutted where fully informed consent not given – Application to extend caveat dismissed. - (NSW) Real Property Act 1900, s 74K

LEGISLATION CITED : Real Property Act 1900 (NSW) Legal Profession Act 1987 (NSW)

Maguire v Makaronis (1997) 188 CLR 449 Law Society of New South Wales v Harvey [1976] 2 NSWLR 154 Adams v London Improved Motor Coach Builders Ltd [1921] 1 KB 495 Latoudis v Casey (1990) 170 CLR 534 CASES CITED : Cachia v Hanes (1994) 179 CLR 403 Oshlack v Richmond River Council (1998) 193 CLR 72 Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 Wentworth v Rogers (2006) 66 NSWLR 474 London Loan and Savings Co of Canada v Brickenden [1934] 3 DLR 465