Waco Kwikform Limited v Jabbour [2010] NSWSC 1379

New South Wales Supreme Court

CITATION : Waco Kwikform Limited v Jabbour [2010] NSWSC 1379

HEARING DATE(S) : 15 November 2010

JUDGMENT DATE : 15 November 2010

JURISDICTION : Equity

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 15 November 2010

1. Upon the plaintiff by its counsel giving the usual undertaking as to damages and also undertaking that within 21 days it will file a further amended summons claiming final relief, order that the operation of caveat AF660156F, lodged over the properties described in folio identifiers 60/35982 and 81/6/5701 and known as 33 Cullens Road, Punchbowl and 60 Rossmore Avenue, Punchbowl respectively, be extended until further order. DECISION : 2. This order may be entered forthwith. 3. Make no order as to the costs of the parties attending on 10 November 2010 and subject to that order, order that the costs of the application to extend the caveat be the plaintiff's costs in the proceedings. 4.Exhibits may be returned after 28 days.

CATCHWORDS : REAL PROPERTY – application to extend caveat under Real Property Act 1900, s 74K – where caveat claimed equitable interest pursuant to charge securing obligations under guarantee and indemnity – whether caveatable interest exists –balance of convenience – where summons does not include claim for final relief – whether bar to extension of caveat - CORPORATIONS – where debtor company in voluntary administration – whether leave required under Corporations Act 2001 (Cth), s 440J to bring caveat extension proceedings – whether proceedings step in enforcement of guarantee of liability of debtor company – whether application to extend caveat "in relation to" guarantee – whether leave to be granted retrospectively – relevant considerations – whether any debt secured by the charge – serious question to be tried that debtor company owes debt to plaintiff subject to guarantee and secured by charge