Business Acquisitions Australia Pty Ltd v GL & SE (Service Station) Pty Ltd [2007] NSWSC 843

New South Wales Supreme Court

CITATION : Business Acquisitions Australia Pty Ltd v GL & SE (Service Station) Pty Ltd [2007] NSWSC 843

HEARING DATE(S) : 26 July 2007

JUDGMENT DATE : 26 July 2007

JURISDICTION : Equity Division

JUDGMENT OF : Palmer J

EX TEMPORE JUDGMENT DATE : 26 July 2007

DECISION : Summons for leave to lodge caveat dismissed.

CATCHWORDS : CAVEATS – LEAVE TO LODGE FURTHER CAVEAT – Whether sufficient evidence to support prima facie case of caveatable interest.

LEGISLATION CITED : Real Property Act 1900 (NSW) – s.74O

CASES CITED : Bell v Mainbader Pty Ltd (unrep.) 07.11.1991

PARTIES : Business Acquisitions Australia Pty Ltd – Plaintiff GL & SE (Service Station) Pty Ltd – Defendant

FILE NUMBER(S) : SC 3592/07

COUNSEL : J.M. Harris – Plaintiff G.P. George – Defendant

SOLICITORS : Galilee Solicitors – Plaintiff L.G. Parker & Co – Defendant

3592/07 Business Acquisitions Aust Pty Ltd v GL & SE (Service Station) Pty Ltd

JUDGMENT – Ex tempore 26 July, 2007

1 By its Summons, the Plaintiff seeks an order granting it leave under s.74O of the Real Property Act 1900 (NSW) to lodge a further caveat securing an interest which it says it has over the subject property of the Defendant pursuant to charging clauses within a Mandate Agreement between the parties, dated 4 May 2007. 2 The Plaintiff had earlier lodged a caveat claiming the same secured interest. The Defendant filed a lapsing notice but the Plaintiff did not obtain an order extending the operation of the caveat by the time required in the lapsing notice. The Plaintiff says it did not do so as a result of miscommunication and misunderstanding, and not through any conscious decision on its part not to seek to enforce the security interest said to be created by the Mandate Agreement. 3 However, in this application I have to determine whether or not the interest claimed by the Plaintiff pursuant to the Mandate Agreement is sufficiently made out, at least on a prima facie basis and whether, if that is so, the circumstances are such that the Court should, in the exercise of its discretion under s.74O(2)(a), grant leave for the lodgement of another caveat. The circumstances, briefly, are as follows. 4 The Defendant wished to develop certain land and approached a broker to assist it to obtain finance. The broker approached the Plaintiff. The Plaintiff sent a letter of offer to the Defendant on 13 April 2007. There is no evidence as to what information had been supplied by the Defendant to the Plaintiff in order to generate that letter of offer. 5 The letter of offer states: "Your application has been considered to the limited extent of the information provided are subject to the statements made in connection therewith being correct. This letter is strictly confidential and should not be disclosed in whole or any part to any third party without the prior written consent of the Lender.