Boral Recycling v Wake [2009] NSWSC 712

New South Wales Supreme Court

CITATION : Boral Recycling v Wake [2009] NSWSC 712

HEARING DATE(S) : 21/7/09 JURISDICTION : Equity Division

JUDGMENT OF : McDougall J at 1

EX TEMPORE JUDGMENT DATE : 21 July 2009

DECISION : See paragraph [17] of the judgment.

CATCHWORDS : REAL PROPERTY - application to extend caveat - agreement to mortgage creating caveatable interest not stamped - agreement unenforceable as equitable mortgage - application refused.

Duties Act 1997 LEGISLATION CITED : Real Property Act 1900 Stamp Duties Act 1920

CATEGORY : Procedural and other rulings

CASES CITED : McKensey v Hewitt [2004] NSWSC 636 Neoform Developments and Interiors Pty Limited v Town and Country Marketing Pty Limited [2002] NSWSC 344

Boral Recycling Pty Limited (Plaintiff) PARTIES : Stephen James Wake (First Defendant) Lorraine Wake (Second Defendant)

FILE NUMBER(S) : SC 3727/09

COUNSEL : E Oliveri (Solicitor) (Plaintiff) D Clarke (Solicitor) (Defendants)

SOLICITORS : Oliveri Lawyers (Plaintiff) Clamenz Corporate Lawyers (Defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

McDOUGALL J

21 July 2009 (ex tempore – revised 22 July 2009)

3727/09 BORAL RECYCLING PTY LIMITED v STEPHEN JAMES WAKE JUDGMENT 1 HIS HONOUR: This is an application to extend the operation of a caveat lodged against the title of two parcels of land registered in the name of the defendants. The caveatable interest is said to arise from a personal guarantee and indemnity agreement made between the plaintiff and the defendants on about 3 or 9 October 2008. Clause 9 of that document, so far as it is legible, reads as follows: "9. The Guarantor hereby agrees to charge all their equitable interest in freehold or leasehold property. The Guarantor agrees to deliver to the Supplier within (7) days of demand, a properly executed Memorandum of Mortgage..."