Jensen v Bank of Queensland [2011] NSWCA 71

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Jensen v Bank of Queensland [2011] NSWCA 71 Hearing dates: 25 March 2011 Decision date: 25 March 2011 Before: Beazley JA at [1], [31]; Hodgson JA at [2]; Macfarlan JA at [33] Decision: 1. Order 5(d) of the orders of Gzell J made on 21 February 2011 be set aside and in place thereof: (a) Order that, until registration of an instrument of transfer in respect of folio identifier 1608/733594, known as 11 Melaleuca Close, Castle Hill NSW between the plaintiff and Jennifer Adele Hancock and Nigel Leigh Hancock, or until the Court otherwise orders, the second defendant not accept for lodgement, and not record in the Register, any caveat presented for lodgement which prohibits or purports to prohibit the second defendant from recording in the Register a dealing effected by the plaintiff as mortgagee in the exercise of a power of sale or other power or right conferred by mortgage or under law, otherwise than with leave of the Court; (b) Order pursuant to s 74MA(2)(a) of the Real Property Act that the third defendant withdraw caveat AG70440X by 5 pm on 1 April 2011. 2. Appeal otherwise dismissed. 3. No order as to costs of the Appeal or the Application for Leave to Appeal (with the intent that each party bear their own costs). Undertaking given to the Court by respondent not to lodge with the Registrar-General for registration any instrument of transfer relating to the property folio identifier 1608/733594 prior to 5 pm Monday 11 April 2011; [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: REAL PROPERTY - Land under the Real Property Act 1900 - Caveats - Caveats preventing exercise of power of sale by mortgagee - Requirements for caveats - Whether injunction can be granted requiring Registrar General not to accept certain caveats. Legislation Cited: Real Property Act s.36, s.74F, s.74G, s.74H, s.74L, s.74MA, s.74O and s.74Q Real Property Regulation 2008, Schedule 3 Cases Cited: John Alexander's Clubs Pty Limited v White City Tennis Club Ltd (2010) 241 CLR 1 Williams v Mark Australia Limited (1985) 5 NSWLR 529 Category: Principal judgment Parties: Paula JENSEN (appellant) Bank of Queensland Limited ACN 009 656 740 (respondent) Representation: Counsel: L GOODCHILD (appellant) R McHUGH SC/ D BARNETT (respondent) H ALTAN (Registrar-General) Solicitors: In Person (appellant) Dibbs Barker (respondent) File Number(s): 2011/44879 Decision under appeal Citation: Bank of Queensland v Hoerman [2011] NSWSC 73 Date of Decision: 2011-02-22 00:00:00 Before: Gzell J File Number(s): 2011/44879