Mackay Reef Fish Supplies Pty Ltd v Vicary

Mackay Reef Fish Supplies Pty Ltd filed a claim against Vicary and others, seeking various declarations and orders in relation to a property. The claim included a statement of claim which alleged that the defendants were the registered owners as joint tenants of the property and that the plaintiff had lodged a caveat over the property claiming an interest as an equitable mortgagee. The plaintiff sought to amend the statement of claim outside the three-month period to assert an equitable mortgagee status based on a different ground and that the caveat was lodged on a different ground. The court was required to determine whether the caveat should lapse under section 105(3)(a) of the Land Title Act 1994 or be removed. Additionally, the court had to decide whether the plaintiff's application for leave to amend the claim and statement of claim should be allowed.

The court dismissed the application for leave to amend the claim and statement of claim. It held that the application was made outside the three-month period and the amendment was not permissible. The court found that the caveat may not have been lodged on the correct ground or if it was, a proceeding to establish the interest claimed in the caveat was not commenced within three months. Therefore, the caveat should lapse under section 105(3)(a) of the Land Title Act 1994. The court ordered that the parties show cause within seven days why the claim and statement of claim should not be struck out. If cause is not shown, the claim and statement of claim will be struck out without further reference to the parties. The court also ordered that the parties show cause within 14 days why the Registrar of Titles should not remove caveat number 714435257 from the property. If cause is not shown, the judgment and orders will be referred to the Registrar of Titles without further reference to the parties.