SLAN v EDGERLY & 3 ORS [2008] NSWSC 1316

New South Wales Supreme Court

CITATION : SLAN v EDGERLY & 3 ORS [2008] NSWSC 1316

HEARING DATE(S) : 5 December 2008

JUDGMENT DATE : 5 December 2008

JURISDICTION : Equity

JUDGMENT OF : Bryson AJ at 1

(1) Order in terms of the following claims in the further amended summons dated 4 December 2008 and noting that I have amended that document: Claim 1, claim 3, claim 3A and claim 4. DECISION : (2) Order that the second defendant remove caveat number 9128991P on or before 8 December 2008. (3) Order that the second defendant pay the plaintiff's costs of the proceedings.

CATCHWORDS : VENDOR and PURCHASER – purchaser's lien for payment of part of purchase money – on a sale for $180 000 Special Clause 35 provided:"The vendor acknowledges that he has received $138,000 towards the purchase price from the purchaser in full satisfaction of the judgment obtained by the purchaser against the vendor in proceedings Number 5827/01 issued out of the District Court in Sydney. - Consideration of purchaser's lien. HELD – purchaser's lien exists throughout until completion even if no entitlement to repayment has arisen – consideration of Ex Parte Lord [1985] 2 Qd R 198 at 201 – purchaser's lien for $138, 000 arose on exchange – on assessment of competing equities, an alleged unregistered mortgagee did not have a better equity than the purchaser.

CASES CITED : Black v Garnock (2007) 230 CLR 438Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Limited (1986) 160 CLR 226Ex Parte Lord [1985] 2 Qd R 198Heid v Reliance Finance Corporation Pty Limited (1983) 154 CLR 326Hewett v Court (1983) 149 CLR 639Rose v Watson (1864) 10 HL Cas 672Tanwar Enterprises Pty Limited v Cauchi (2003) 217 CLR 315