Champion Homes Sales Pty Ltd v JKAM Investments Pty LtdHotray Pty Ltd v JKAM Investments Pty Ltd [2014] NSWSC 952

Supreme Court New South Wales

Medium Neutral Citation: Champion Homes Sales Pty Ltd v JKAM Investments Pty LtdHotray Pty Ltd v JKAM Investments Pty Ltd [2014] NSWSC 952 Hearing dates: 4, 5 and 6 June 2014 Decision date: 18 July 2014 Jurisdiction: Equity Division Before: Darke J Decision: Equitable interests as claimed by parties established. Priority to be given according to the order in which interests were created. Catchwords: EQUITY - equitable interests in real property - equitable charge - created by words of present grant - no separate requirement of consideration for grant of charge

EQUITY - equitable interests in real property - unregistered mortgages - whether grant of mortgage supported by consideration - whether mortgage does not secure any obligations

EQUITY - equitable interests in real property - purchaser under contract for sale - whether no interest because specific performance would not be ordered

EQUITY - equitable interests - priorities - whether holders of earlier interests guilty of postponing conduct by remaining silent or engaging in sharp practice - failure to caveat not postponing conduct where holders of later interests fail to search register - whether holders of later interests took with notice of earlier interest

REAL PROPERTY - Torrens system - caveats - validity - failure to provide prescribed particulars of claimed interest - amount of debt charged on land - whether failure is to be disregarded pursuant to Real Property Act 1900 (NSW) s 74L Legislation Cited: Conveyancing Act 1919 (NSW) ss 23C(1)(a), 38 Corporations Act 2001 (Cth) ss 127(1), 127(3) Home Building Act 1989 (NSW) s 7D Real Property Act 1900 (NSW) ss 74O, 74F(5)(b)(v), 74L Real Property Regulation 2008 (NSW) cl 7, Schedule 3 Cases Cited: Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd [2000] HCA 25; (2000) 202 CLR 588 Business Acquisitions Australia Pty Ltd v Renshall [2006] NSWSC 1238 Chan v Cresdon Pty Ltd [1989] HCA 63; (1989) 168 CLR 242 Circuit Finance Australia Limited (Receivers and Managers appointed) (in liquidation) v Panella & anor [2011] NSWSC 311 Double Bay Newspapers Pty Ltd and others v AW Holdings Pty Ltd and others (1996) 42 NSWLR 409 FTFS Holdings Pty Ltd v Business Acquisitions Australia Pty Ltd [2006] NSWSC 846 Heid v Reliance Finance Corporation Pty Ltd [1983] HCA 30; (1983) 154 CLR 326 Lapin v Abigail [1930] HCA 6; (1930) 44 CLR 166 Lewis v Wilson (1997) 42 NSWLR 228 Nabeth Taleb v National Australia Bank Ltd [2011] NSWSC 1562; (2011) 82 NSWLR 489 Tanwar Enterprises Pty Ltd v Cauchi [2003] HCA 57; (2003) 217 CLR 315 Texts Cited: EI Sykes and S Walker, The Law of Securities, (5th ed 1993, Law Book Company) ELG Tyler, PW Young and CE Croft, Fisher and Lightwood's Law of Mortgage, (3rd Australian ed 2014, LexisNexis Butterworths) GE Dal Pont, Equity and Trusts in Australia, (5th ed 2011, LexisNexis Butterworths) Category: Principal judgment Parties: 2014/21077 Champion Homes Sales Pty Ltd (plaintiff/cross-defendant) JKAM Investments Pty Ltd (first defendant/cross-claimant) Karl Damien (second defendant)