Summit Acceptance Pty Ltd v Wild [2011] NSWSC 659

Supreme Court New South Wales

Medium Neutral Citation: Summit Acceptance Pty Ltd v Wild [2011] NSWSC 659 Decision date: 18 May 2011 Before: White J Decision: Refer to paras [34], [35] and [36] of judgment. Catchwords: REAL PROPERTY - caveat - application to lodge a fresh caveat under s 74O of the Real Property Act 1900 - where plaintiff claims an interest as chargee under lease agreement and guarantee - where plaintiff obtained judgment in Local Court for amount owing by the defendant under the guarantee and for costs of the application - serious question to be tried that the charge exists and secures the obligations of the defendant under Local Court judgment - balance of convenience favours maintenance of caveat as plaintiff may be put in position of unsecured creditor if left to remedies as judgment creditor - where plaintiff does not claim for final relief in application for maintenance of caveat - plaintiff entitled to leave under s 74O if proffers an undertaking to the court to amend summons to seek final relief, at least in form of a declaration that plaintiff entitled to charge over defendant's property Legislation Cited: Real Property Act 1900 Civil Procedure Act 2005 Conveyancing Act 1919 Cases Cited: Iaconis v Lazar [2007] NSWSC 1103 Wu v Dardaneliotou [2008] NSWSC 1319 Waco Kwikform Limited v Jabbour [2010] NSWSC 1379 Category: Interlocutory applications Parties: Summit Acceptance Pty Ltd (Plaintiff) Brett Allan Wild (1st Defendant) Charmain Linden Smith (2nd Defendant) Representation: D K G Milne (Solicitor for Plaintiff) In Person (1st Defendant) David Milne & Associates (Plaintiff) File Number(s): 2011/130512