Manttan v Equititrust Limited [2010] NSWSC 931

New South Wales Supreme Court

CITATION : Manttan v Equititrust Limited [2010] NSWSC 931

HEARING DATE(S) : 12/08/10

JUDGMENT DATE : 12 August 2010

JURISDICTION : Equity

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 12 August 2010

1. Order that the summons be dismissed. 2. Exhibits may be returned after 28 days. DECISION : 3. Order that the moneys paid into court pursuant to order 3(a) of the orders of Biscoe AJ of 25/5/10 not be paid out until further order. 4. Direct that the plaintiff's solicitor notify PRD Nationwide Newhouse Power and the National Australia Bank of that last order. 5. Give liberty to PRD Nationwide Newhouse Power, the National Australia Bank and either party to apply in relation to the application of the moneys paid into court on reasonable notice. 6. Order that the plaintiff pay the defendant's costs.

CATCHWORDS : REAL PROPERTY – application pursuant to Real Property Act 1900, s 74MA for withdrawal of caveat and for order to restrain defendant from lodging further caveats – plaintiff and defendant entered into deed of guarantee and indemnity pursuant to which plaintiff charged interest in land in favour of defendant and agreed to execute additional security on request by defendant – defendant lodged caveats claiming interest as equitable mortgagee pursuant to unregistered second mortgage – removal of caveats sought to enable sale of properties to proceed – evidence that properties to be sold below current market value to plaintiff's acquaintances - REAL PROPERTY – whether defendant had caveatable interest – whether caveat sufficiently described caveatable interest – whether caveat has no proper purpose and maintained to put illegitimate pressure on plaintiff – whether caveat should be removed because first mortgagee will receive entire proceeds of sale of property – whether defendant has legitimate interest in refusing to remove caveat –removal of caveat with no alternative security would prejudice defendant by creating risk of loss of priority and receipt of less proceeds from realisation of property