Bayblu Holdings Pty Ltd v Capital Finance Australia Limited [2011] NSWCA 39

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Bayblu Holdings Pty Ltd v Capital Finance Australia Limited [2011] NSWCA 39 Hearing dates: 25 February 2011 Decision date: 25 February 2011 Before: Tobias JA, Campbell JA, Macfarlan JA Decision: The summons for leave to appeal filed 8 February 2011 dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORRENS SYSTEM - Caveats - Lapse, removal and withdrawal - test for ordering withdrawal is whether the caveator would have been granted an interlocutory injunction to protect the interest claimed in the caveat -

INJUNCTIONS - Interlocutory - Serious question to be tried - balance of convenience - relevance of whether the proceeds of sale of the properties would be sufficient to repay the mortgage in full - relevance of the financial position of the mortgagor - relevance of whether the mortgagor has brought into court the amount owed to the mortgagee - relevance of whether the mortgagor is in a position to offer the usual undertaking as to damages and has done so - relevance of the effect on third parties - discussion of principles for which Inglis v Commonwealth Trading Bank of Australia (1971) 126 CLR 161 is authority

TORRENS SYSTEM - Caveats - Who may lodge - where land subject to a mortgage has been sold at a price completely payable to the first mortgagee, someone with an interest in the land to which that mortgage has priority is usually not entitled to maintain a caveat -