Capital Finance Australia Limited v Bayblu Holdings Pty Ltd & JNW Investments Pty Limited [2011] NSWSC 24

Supreme Court New South Wales

Medium Neutral Citation: Capital Finance Australia Limited v Bayblu Holdings Pty Ltd & JNW Investments Pty Limited [2011] NSWSC 24 Hearing dates: 20 January 2011, 25 January 2011, 2 February 2011 Decision date: 02 February 2011 Jurisdiction: Equity Division Before: Pembroke J Decision: 1. I order the first defendant to provide forthwith to the plaintiff a duly executed Withdrawal of Caveat in registrable form with respect to Caveat AG455. 2. I order the second defendant forthwith to take whatever steps are required by the Land & Property Management Authority to withdraw the unrecorded Caveat AG454 which purports to affect the land in folio identifiers I/SP80174, 2/SP80174, 4/SP80174, 6/SP80174, 7/SP80174 and 8/SP80174 and known as 146-148 Ocean Parade, Blue Bay in New South Wales by no later than 2pm today,2 February 2011. 3. I grant a stay of the operation of these orders up to and including 14 February, 2011 to enable the defendants to seek from the Court of Appeal, if so advised, a stay pending appeal. 4. I order the defendants to pay the plaintiff's costs. Catchwords: MORTGAGEE'S POWER OF SALE - removal of caveat - no possibility of surplus moneys - discretionary considerations - payment into court - undertaking as to damages

PRECEDENT - comity - decision of intermediate appellate court of another state - equitable principle - clearly wrong - not followed Legislation Cited: Real Property Act 1900 Cases Cited: Bendigo and Adelaide Bank v Tombs [2010] NSWSC 1427 Cal No 14 Pty Ltd v Motor Accidents Board (2009) 239 CLR 390 Commonwealth Bank of Australia v Hadfield [2004] NSWCA 350 Cross v national Australia Bank Ltd [1992] ANZ ConvR 28, (1993) Q ConvR GE Personal Finance Pty Ltd v Smith [2006] NSWSC 889 Gippsreal Ltd v Hanna [2009] NSWSC 169 Forsyth v Blundell (1973) 126 CLR 477 Inglis v Commonwealth Trading Bank of Australia (1971) 126 CLR 161 Lew v Bluescope Distribution Limited [2010] NSWSC 794 Martyn v Glennan [1979] 2 NSWLR 234 Secure Funding v Webster [2008] NSWSC 443 Re McKean's Caveat [1988] 1 QD R 524 R & I Bank of Western Australia Ltd v Lavery (unreported, Supreme Court of Western Australia, 25 October 1993 BC9301503 Patmore v Upton [2004] TASSC 77, (2004) 13 Tas R 95 Perpetual Limited v Kelso [2008] NSWSC 906 Sinclair v Hope [1982] 2 NSWLR 870 Star v Silvia (No 1) [1994] 12 ACLC 600 St George Bank v Udowenko [2010] NSWSC 1289 Swanston Mortgage Pty Limited v Trepan Investments Pty Limited [1994] 1 VR 672 Texts Cited: Meagher, Heydon and Leeming "Equity - Doctrines & Remedies" 4th Ed Wright D, Does the Registered Proprietor have a caveatable interest? (1995) 69 ALJR 935 Category: Principal judgment Parties: Capital Finance Australia Limited (Plaintiff) Bayblu Holdings Pty Ltd (Defendant) JNW Investments Pty Limited (Defendant) Representation: Counsel: A Zahra (Plaintiff) R Angyal SC with M Lazarus (Defendants) Solicitors: Gadens (Plaintiff) Lazarus Legal Group (Defendants) File Number(s): 2011/00019741