Supreme Court
New South Wales
Medium Neutral Citation: Hanson Construction Materials Pty Ltd v Roberts [2016] NSWSC 989 Hearing dates: 14 July 2016 Decision date: 14 July 2016 Jurisdiction: Equity - Duty List Before: Stevenson J Decision: Plaintiff’s caveat to be removed to enable refinance on condition that defendant consents to further caveat being lodged in same terms immediately on refinance
Catchwords: REAL PROPERTY – caveats – whether caveat should be removed to allow refinance – where registered proprietor claims her purported signature on instrument said to create caveatable interest is forged – where registered proprietor’s equity will be reduced by reason of the refinance but likely to be sufficient equity in property to protect alleged caveatable interest – where registered proprietor will consent to further caveat being lodged with same priority Legislation Cited: Real Property Act 1900 (NSW) Cases Cited: Buchanan v Crown & Gleeson Business Finance Pty Ltd [2006] NSWSC 1465
Tadrous v Tadrous [2009] NSWSC 407Category: Procedural and other rulings Parties: Hanson Construction Materials Pty Ltd (Plaintiff/Respondent)
Elaine Therese Roberts (Defendant/Applicant)Representation: Counsel:
Solicitors:
B Le Plastrier with E Anderson (Plaintiff/Respondent)
E A Walker (Defendant/Applicant)
Patane Lawyers (Plaintiff/Respondent)
O'Hearn Lawyers (Defendant/Applicant)
File Number(s): SC 2015/371660
EX TEMPORE Judgment (REVISED)
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These proceedings were commenced on 18 December 2015 when the plaintiff, Hanson Construction Materials Pty Ltd, filed a summons seeking an order under s 74K of the Real Property Act 1900 (NSW) that a caveat lodged by it on the title of a property at Marks Point owned by the defendant, Mrs Roberts, ("the Property") be extended (following service on Hanson by Mrs Roberts of a lapsing notice under s 74J of that Act).
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The Property is the Roberts’ family home.
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Hanson claims it has a caveatable interest in the Property by reason of a guarantee that it alleges Mrs Roberts signed to secure the indebtedness to Hanson of Wayne Roberts Concrete Constructions Pty Ltd ("the Company") under a trading facility dated 2 May 2013 ("the Agreement"). Evidently, the Company was associated with Mrs Roberts' husband's concreting business. On 1 May 2015 the Company was placed into liquidation.
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The Agreement, if binding on Mrs Roberts, purports to charge her property, including the Property, in Hanson's favour to secure the amount owing under the Agreement.
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Currently, there is a first mortgage on the title of the Property in favour of the Commonwealth Bank of Australia and caveats lodged by (in order) Hanson, by a Mr Morelli (who is the liquidator of the Company) and by Mrs Roberts' solicitors.
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On 23 October 2013, Hanson commenced proceedings in the District Court against the Company and against Mr and Mrs Roberts to seek, amongst other things, to recover the amounts said to be due under the Agreement. In those proceedings (which have since been transferred to this Court and which I will call “the Main Proceedings") Mrs Roberts has filed a defence in which she denies that she executed the Agreement. In the Main Proceedings there is currently a direction that…
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- AGLC
- Hanson Construction Materials Pty Ltd v Roberts [2016] NSWSC 989
- Case
- [2016] NSWSC 989
- Decision Date
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