Barlin Investments Pty Ltd v Westpac Banking Corporation

The case of Barlin Investments Pty Ltd v Westpac Banking Corporation involved a dispute over the priority of unregistered interests in real property, specifically the operation of s 74H(4) of the Real Property Act and the determination of "better equity." The dispute arose when the plaintiff, Barlin Investments, claimed priority over an unregistered interest held by Westpac Banking Corporation. The case was heard in the Supreme Court of New South Wales.

The primary legal issues before the court were the meaning of "has been lodged" in the context of s 74H(4) of the Real Property Act and the determination of "better equity" in a situation where an earlier interest holder had withdrawn a caveat, and a later interest holder had acquired their interest from a person with a "better equity" but was on notice of the earlier interest. The court was also required to consider the operation of s 43A(1) of the Real Property Act, which provides protection to a person who acquires an interest from a person entitled to protection under that section.

In determining these issues, the court held that a dealing is not considered lodged until it is given a distinctive reference. The court also found that where a person has acquired an interest from another person entitled to protection under s 43A(1), they are still entitled to priority. In this case, Westpac Banking Corporation, having acquired the interest from a person with a "better equity," was entitled to priority despite being on notice of the earlier interest held by Barlin Investments. The court determined that the earlier interest holder's withdrawal of the caveat did not result in the loss of priority.

As a result of the court's reasoning, the orders made were in favour of Westpac Banking Corporation, affirming their priority over the unregistered interest held by Barlin Investments. This decision highlights the importance of obtaining a distinctive reference for a dealing to be considered lodged and the continued protection afforded to a person who acquires an interest from another person entitled to protection under s 43A(1) of the Real Property Act.