Nabeth Taleb v National Australia Bank Ltd [2011] NSWSC 1562

Supreme Court New South Wales

Medium Neutral Citation: Nabeth Taleb v National Australia Bank Ltd [2011] NSWSC 1562 Hearing dates: 11/11/2011; 12/12/2011 Decision date: 15 December 2011 Jurisdiction: Equity Division Before: Bryson AJ Decision: The proceedings are dismissed with costs. Catchwords: EQUITY - Equitable interests in land - competing equitable interests - the plaintiff lent money under Deed of Acknowledgement of 28 January 2010 which gave him a right to lodge a caveat - on 15 October NAB after searching and finding no caveat lent $1.5 million, paid out previous first mortgagee Westpac, and took mortgage but delayed lodgment for registration until 7 December - plaintiff believed his borrower had arranged a caveat for him, found out on 6 October that he had not and lodged a caveat on 26 November - NAB found out about the caveat when it lodged mortgage for registration on 7 December and received a requisition requiring removal of the caveat - this was first notice to NAB of plaintiff's claim - each party delayed unreasonably but NAB's delay did not cause the plaintiffs difficulty - on review of facts and parties, NAB had the better equity - consideration of - whether agreement to permit lodgment of caveat impliedly creates equitable charge -operation of s43A Real Property Act. Legislation Cited: Duties Act 1997 Conveyancing Act 1919 Real Property Act 1900 Cases Cited: Banque Financiere de la Cite v Parc (Battersea) [1999] 1 AC 221 Bellissimo v JCL Investments Pty Ltd & Anor [2009] NSWSC 1260 Burston Finance Ltd v Spierway Ltd [1974] 1 WLR 1648 Cash Resources Aust Pty Ltd v BT Securities Ltd [1990] VR 576 Challenger Managed Investments Ltd v Direct Money Corp Pty Ltd (2003) 49 NSWLR 452 Cheltenham & Gloucester PLC v Appleyard [2004] EWCA Civ 291, [2004] All ER (D) 280 Coleman v Bone (1996) 9 BPR 16,235 Courtenay v Austin (1961) 78 WN NSW 1082 Cranston v CBFC Ltd (High Court of Australia, 11 June 1993, unreported) Diemasters Pty Ltd v Meadowcorp Pty Ltd (2001) 52 NSWLR 472, [2001] NSWSC 495 Drulroad Pty Ltd v Gibson (Hodgson J, Supreme Court of New South Wales, 8 July 1992, unreported) Express Loans & Finance Pty Ltd v Hunter [2004] NSWSC 142 Finlay v R & I Bank of Western Australia Ltd (1993) NSW ConvR 55-686 Highland v Exception Holdings Pty Ltd in Liq [2006] NSWCA 318 Heid v Reliance Finance Corporation Pty Ltd (1983) 154 CLR 326 IAC (Finance) Pty Ltd v Courtenay (1963) 110 CLR 550 J & H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546; (1969) 90 WN (Pt 1) (NSW) 571 Iaconis v Lazar (2007) 13 BPR 24,937; [2007] NSWSC 1103 Meriton Apartments v McLaurin & Tate (Developments) Pty Ltd (1976) 113 CLR 671 Murphy v Wright (1992) NSW ConvR 55-652; (1992) 5 BPR 11,734, Person To Person Financial Services Pty Ltd v Sharari [1984] 1 NSWLR 745 Redglove Projects v Ngummawal Local Aboriginal Council [2004] NSWSC 880 Rush, Re and the Real Property Act (1962) 80 WN (NSW) 58 Tooth & Co Ltd v Barker (1960) 77 WN (NSW) 231 Troncone v Aliperti NSW ConvR 55-703; (1994) 6 BPR 13,291; (1994) Weller v Williams [2010] NSWSC 716; (2010) 14 BPR [988406] Category: Principal judgment Parties: Nabeth Taleb (Plaintiff) National Australia Bank Ltd (First Defendant) Vashiliki Tsemetzis (Second Defendant) Representation: Mr M Evans (Plaintiff) Mr J Hynes (First Defendant) Mr Z Mandoh (Second Defendant) Sommerville & Co (Plaintiff) TurksLegal (First Defendant) Mandoh & Associates (Second Defendant) File Number(s): 2011/00239432