Kalx Capital Securities Pty Ltd v Richardson 1 Pty Ltd [No 2]

Kalx Capital Securities Pty Ltd sought an extension of a caveat over certain land registered in the name of Richardson 1 Pty Ltd. The issue was whether Kalx had a caveatable interest in the land. Kalx claimed that it had a charge over the land as security for the payment of fees. The dispute centred on whether the fees were payable at the time of the repudiation of a contract and whether the charge secured a claim for damages arising from that repudiation. The court had to decide whether Kalx had established a serious question to be tried regarding its claim to a caveatable interest in the land.

The court held that Kalx needed to demonstrate that its claim to a caveatable interest had substance, which is similar to the test for an interlocutory injunction. The likelihood of success required would depend on the nature of the rights asserted and the practical consequences of the orders sought. The court noted that it was not appropriate to determine disputed questions of fact in interlocutory proceedings. The balance of convenience was also a factor, especially when the caveator claimed a security interest. The court emphasised that a caveat must not exceed the legitimate claim necessary to protect the caveator's rights and that an absolute caveat was not suitable for a chargee. The court found the affidavits of Kalx's solicitor to be unsatisfactory due to several reasons, including the inclusion of submissions rather than evidence and the lack of foundation for certain assertions.

The court dismissed the application for an extension of the caveat, finding that Kalx had not established a serious question to be tried. The affidavits provided by Kalx did not meet the required standard, and the balance of convenience did not favour Kalx. The court also noted that Kalx's claim for an absolute caveat was inappropriate given its nature as a security interest. The application was therefore dismissed.