Hanson Construction Materials Pty Ltd v Roberts

Hanson Construction Materials Pty Ltd (the registered proprietor) applied to the Supreme Court of New South Wales for an order to withdraw a caveat lodged by Roberts, which claimed a security interest over the land. The registered proprietor sought to refinance its first mortgage and argued that the caveat, which it disputed the validity of, prevented this. The primary judge ordered the withdrawal of the caveat, but allowed Roberts to relodge it after the refinancing was complete, thereby reducing the registered proprietor's equity in the land. The registered proprietor appealed this decision.

The appeal concerned two main legal issues. Firstly, whether the primary judge erred in ordering the withdrawal of the caveat. Secondly, whether the discretion conferred by section 74MA of the *Real Property Act 1900* (NSW) to order the withdrawal of a caveat is constrained by a requirement that the circumstances be "unusual" or "rare" before such an order can be made.

The Court of Appeal held that the discretion under section 74MA of the *Real Property Act 1900* (NSW) is not constrained by a requirement for the case to be unusual or rare. The Court found that the primary judge had correctly exercised their discretion, noting that the order made was a practical solution that balanced the interests of both parties. The refinancing would proceed, and Roberts' security interest would be preserved by allowing the relodgement of the caveat. The appeal was therefore dismissed.