King v Barrett

In the case of King v Barrett, the applicants, Margot Louise King and Franco Fortisa, sought an extension of a caveat lodged over a property owned by the respondents, Anca Ancuta Barrett and Gareth John Barrett. The applicants claim to have an equitable lien over the property arising from payments made for variations to the development of the property, which were agreed upon by the parties. The court was required to decide whether the applicants had shown that their claim had or may have substance and whether the balance of convenience favoured the retention of the caveat.

The court found that the applicants had demonstrated that there was a serious question to be tried as to whether a caveatable interest existed. The applicants alleged that they had terminated the contract of sale for the property, and the respondents did not contest this. The applicants argued that they had an equitable lien arising from the variation payments, which was a caveatable interest. The court accepted that the applicants had shown that there was a serious question to be tried as to whether they had a proprietary interest in the property.

The court also found that the balance of convenience favoured the retention of the caveat. The applicants' case for relief at trial appeared to be relatively strong, and the failure to extend the caveat would have the effect of destroying the protection the applicants had in relation to the variation payments. The court considered that any prejudice to the respondents could be reduced by amending the caveat to specify the extent of the interest claimed in dollar terms. The court proposed to order that the operation of the caveat be extended, subject to the amendment of the caveat and the commencement of substantive proceedings.

The final orders of the court were that the operation of the caveat be extended until the substantive proceedings were instituted, subject to the amendment of the caveat to specify the extent of the interest claimed in dollar terms. The respondents were ordered to pay the applicants' costs of the application for the extension of the caveat.