2-6 First Ave Pty Ltd v Aquamore Credit Equity Pty Ltd

The case of 2-6 First Ave Pty Ltd v Aquamore Credit Equity Pty Ltd involved a dispute regarding the removal of a caveat from a property located at 2-6 First Avenue. Aquamore Credit Equity Pty Ltd was the caveator, while 2-6 First Ave Pty Ltd was the proprietor of the property. Aquamore claimed to hold a serious question to be tried as to the existence of its interest in the property, arising from a contract for the sale of land with the vendor, who was also the proprietor. The vendor subsequently terminated the contract, allegedly due to the purchaser's repudiation, and 2-6 First Ave sought the removal of the caveat on the basis that Aquamore could not make out a serious question to be tried as to its interest in the property.

The legal issues that the court was required to decide included whether Aquamore had a serious question to be tried in relation to its claimed interest in the property, and whether the balance of convenience favoured the removal of the caveat. The court had to consider the relevant provisions of the Real Property Act 1900 (NSW), particularly section 74K(2), which sets out the criteria for the removal of a caveat. Aquamore argued that it had a serious question to be tried, while 2-6 First Ave contended that the caveat should be removed as Aquamore could not proffer an undertaking as to damages that had substance.

The court found that Aquamore could not make out a serious question to be tried in relation to its claimed interest in the property, as the vendor had terminated the contract due to the purchaser's alleged repudiation. The court held that Aquamore's claim was speculative and did not have a real prospect of success. Furthermore, the court found that the balance of convenience favoured the removal of the caveat, as 2-6 First Ave would suffer significant prejudice if the caveat remained in place, while Aquamore would not suffer significant prejudice if the caveat was removed. The court also noted that Aquamore was unable to provide an undertaking as to damages that had substance, which further supported the removal of the caveat. The court therefore granted the application for the removal of the caveat.

In conclusion, the court ordered that the caveat lodged by Aquamore Credit Equity Pty Ltd be removed from the register of titles for the property located at 2-6 First Avenue. The court found that Aquamore could not make out a serious question to be tried in relation to its claimed interest in the property, and that the balance of convenience favoured the removal of the caveat. The court also noted that Aquamore was unable to provide an undertaking as to damages that had substance, which supported the removal of the caveat. The decision in this case highlights the importance of the criteria set out in section 74K(2) of the Real Property Act 1900 (NSW) for the removal of a caveat, and the need for claimants to demonstrate a real prospect of success in their claims.