Andrews v Wilcox [2008] NSWSC 280

New South Wales Supreme Court

CITATION : Andrews v Wilcox [2008] NSWSC 280 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 17 March 2008 JUDGMENT OF : Hammerschlag J

EX TEMPORE JUDGMENT DATE : 17 March 2008

DECISION : Plaintiff to withdraw caveat AC 49554. Plaintiff to pay 80 percent of the defendant's costs of the cross summons.

CATCHWORDS : REAL PROPERTY - Joint tenants - only one grants equitable mortgage to lender - lender caveats whole of property - Caveat impermissible

LEGISLATION CITED : Real Property Act 1900 NSW

Depsun and Anor v Tahore Holdings Pty Ltd (1990) 5 BPR 11,314 CASES CITED : Mason and Porter v Merrett unreported Supreme Court of Western Australia 12/6/1989 Hedley v Roberts [1972] VR 282 Kerabee Park v Daley [1978] 2 NSWLR 222

PARTIES : Susan Marie Andrews Andrew William Wilcox

FILE NUMBER(S) : SC 1551/2008

COUNSEL : D.K.L. Raphael (Plaintiff) R.I. Bellamy (Defendant)

SOLICITORS : Gibsons Lawyers (Plaintiff) Morgan Lewis Attorneys Pty Limited (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMMERSCHLAG J

18 MARCH 2008

1551/2008 SUSAN MARIE ANDREWS -V- ANDREW WILLIAM WILCOX EX TEMPORE JUDGMENT 1 HIS HONOUR: The defendant, Andrew William Wilcox, and his wife, Kerrie Lesley Wilcox are the owners in fee simple as joint tenants of Lot 273 in Deposited Plan 2147 which is at Penrith, in the State of New South Wales ("the property"). 2 On 2 February 2005, Mr Wilcox entered into a loan deed with the plaintiff, Ms Andrews, under which Ms Andrews as lender advanced $20,000 to Mr Wilcox. It was not put in issue before me that the loan deed conferred on Ms Andrews an interest in the property sufficient to support a caveat. 3 The parties are in disagreement as to whether the loan has been repaid. Mrs Andrews claims over $50,000 is owing. Mr Wilcox claims he has repaid in full. It was common cause that there is a genuine dispute between them whether any monies are owing. 4 I was informed from the Bar table that at some point Ms Andrews sued Mr Wilcox in debt in the Local Court but, for reasons which were not elaborated upon, the proceedings were dismissed.