Ageist Pty Ltd v More Than Skin Pty Ltd

In the case of Ageist Pty Ltd v More Than Skin Pty Ltd, the dispute revolves around the removal of a caveat by order of the court. Agist Pty Ltd, the plaintiff, sought the removal of a caveat lodged by More Than Skin Pty Ltd, the second defendant, over certain properties. The second defendant had previously lodged the caveat in response to the plaintiff's exercise of a mortgagee's power of sale, which was subsequently assigned to the plaintiff. The legal issues before the court included whether there was a serious question to be tried, the likelihood of the assignment being invalid, the risk of the property being sold at a substantial undervalue, and whether the plaintiff breached its duty of good faith in the sale process.

The court examined the serious questions to be tried, considering the potential breach of the plaintiff's duty of good faith, the risk of the property being sold at an undervalue, and the enforceability of the guarantee under the Contracts Review Act 1980 (NSW). The court determined that there was a substantial prospect that the plaintiff had breached its duty of good faith and that the amount recoverable from the second defendant should be reduced due to potential penalty clauses. The court also found that there were multiple serious questions to be tried, which favoured the caveat remaining in place until these issues were resolved. Furthermore, the balance of convenience weighed in favour of maintaining the caveat, considering the significant probability of ultimate loss for the plaintiff and the substantial reason for doubt about the plaintiff's ability to compensate the second defendant.

The court concluded that the caveat should not be removed by order, pending the undertaking proposed by the parties. The decision was based on the serious questions to be tried, the balance of convenience, and the lack of a valuable undertaking as to damages from either party. The court's ruling ensures that the caveat remains in place until the underlying issues are resolved, protecting the interests of both parties until a final determination is made.