Barlin Investments Pty Ltd v Westpac Banking Corporation [2012] NSWSC 699

Supreme Court New South Wales

Medium Neutral Citation: Barlin Investments Pty Ltd v Westpac Banking Corporation [2012] NSWSC 699 Hearing dates: 4 to 5 June 2012 Decision date: 26 June 2012 Jurisdiction: Equity Division Before: Ball J Decision: See paragraphs 43 and 44 of this judgment. Catchwords: REAL PROPERTY - unregistered interests - caveats - operation of s 74H(4) of the Real Property Act - meaning of "has been lodged" - consideration of definition of lodgment in s 36(1B) - held that dealing is not lodged until given distinctive reference. REAL PROPERTY - unregistered interests - priority - determination of "better equity" - postponing conduct - where earlier interest holder has withdrawn caveat - where later interest holder has acquired their interest from a person with a "better equity" but is on notice of the earlier interest. REAL PROPERTY - unregistered interests - priority - operation of s 43A(1) - where person has acquired interest from a person entitled to protection under s 43A(1) - held still entitled to priority. Legislation Cited: Real Property Act 1900 (NSW) Cases Cited: Butler v Fairclough (1917) 23 CLR 78 Elderly Citizens Home of SA Inc v Balnaves (1998) 72 SASR 210 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 NSW (1971) 125 CLR 546 Jonray (Sydney) Pty Ltd v Partridge Bros Pty Ltd (1969) 89 WN (Pt 1) (NSW) 568 Latec Investments Ltd v Hotel Terrigal Pty Ltd (in liquidation) (1964-1965) 113 CLR 265 Meriton Apartments Pty Ltd v McLaurin & Tait (Developments) Pty Ltd (1976) 133 CLR 671 Perpetual Trustee Company Ltd (original plaintiff), Performance Capital Mortgage Pty Ltd v Motive Finance & Leasing Pty Ltd [2010] NSWSC 429 Rice v Rice (1853) 61 ER 646 Taleb v National Australia Bank Ltd [2011] NSWSC 1562 United Starr-Bowkett Co-operative Building Society (No 11) Ltd v Clyne (1967) SR (NSW) 331 Weller v Williams [2010] NSWSC 716 Wilkes v Spooner [1911] 2 KB 473 Category: Principal judgment Parties: Barlin Investments Pty Ltd ACN 001 762 063 (Plaintiff) Westpac Banking Corporation (First Defendant) Michael Chiha (Second Defendant) Kay Mitchell (Third Defendant) Paul Francis Mitchell (Fourth Defendant) Representation: DKL Raphael (Plaintiff) PT Newton (First Defendant) No Appearance (Second Defendant) G Van Der Vlag (Third & Fourth Defendants) CMC Lawyers (Plaintiff) Kemp Strang (First Defendant) No Appearance (Second Defendant) Lamrocks (Third & Fourth Defendants) File Number(s): 2010/155506