Franz Boensch as trustee of the Boensch Trust v Scott Darren Pascoe

Franz Boensch, as trustee of the Boensch Trust, filed an application in the Supreme Court of New South Wales to have a caveat lodged by Scott Darren Pascoe removed. The property in question was subject to a mortgage held by the trustee in bankruptcy of a registered proprietor, and Boensch argued that Pascoe’s caveat was invalid as it was lodged without reasonable cause and Pascoe did not have a caveatable interest. Pascoe contended that the trustee in bankruptcy held the property on trust and that he had an honest belief based on reasonable grounds that he had a caveatable interest.

The court was required to determine whether the caveat was lodged or maintained without reasonable cause, whether the trustee in bankruptcy of a registered proprietor held a caveatable interest when the property was held on trust, and whether Pascoe had an honest belief based on reasonable grounds that he had a caveatable interest. The court considered the relevant provisions of the Real Property Act 1900 (NSW), specifically section 74P, which outlines the circumstances under which a caveat can be invalid.

The court found that the caveat was indeed lodged without reasonable cause as Pascoe did not hold a caveatable interest. The court held that the trustee in bankruptcy did not hold the property on trust for Pascoe, and thus, Pascoe did not have a caveatable interest. Additionally, the court determined that Pascoe did not have an honest belief based on reasonable grounds that he had a caveatable interest. Consequently, the court ruled that the caveat was invalid and ordered its removal.

In conclusion, the court ordered that the caveat lodged by Scott Darren Pascoe be removed and that Franz Boensch, as trustee of the Boensch Trust, be entitled to have the caveat expunged from the register of titles.