Manttan v Equititrust Limited - [2010] NSWSC 931

CITATION: Manttan v Equititrust Limited [2010] NSWSC 931

HEARING DATE(S): 12/08/10

JUDGMENT DATE :
12 August 2010

JURISDICTION: Equity

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 12 August 2010

DECISION: 1. Order that the summons be dismissed.
2. Exhibits may be returned after 28 days.
3. Order that the moneys paid into court pursuant to order 3(a) of the orders of Biscoe AJ of 25/5/10 not be paid out until further order.
4. Direct that the plaintiff’s solicitor notify PRD Nationwide Newhouse Power and the National Australia Bank of that last order.
5. Give liberty to PRD Nationwide Newhouse Power, the National Australia Bank and either party to apply in relation to the application of the moneys paid into court on reasonable notice.
6. Order that the plaintiff pay the defendant’s costs.

CATCHWORDS: REAL PROPERTY – application pursuant to Real Property Act 1900, s 74MA for withdrawal of caveat and for order to restrain defendant from lodging further caveats – plaintiff and defendant entered into deed of guarantee and indemnity pursuant to which plaintiff charged interest in land in favour of defendant and agreed to execute additional security on request by defendant – defendant lodged caveats claiming interest as equitable mortgagee pursuant to unregistered second mortgage – removal of caveats sought to enable sale of properties to proceed – evidence that properties to be sold below current market value to plaintiff’s acquaintances - REAL PROPERTY – whether defendant had caveatable interest – whether caveat sufficiently described caveatable interest – whether caveat has no proper purpose and maintained to put illegitimate pressure on plaintiff – whether caveat should be removed because first mortgagee will receive entire proceeds of sale of property – whether defendant has legitimate interest in refusing to remove caveat –removal of caveat with no alternative security would prejudice defendant by creating risk of loss of priority and receipt of less proceeds from realisation of property

LEGISLATION CITED: Real Property Act 1900 (NSW)

CASES CITED: Hanson Construction Materials Pty Limited v Vimwise Civil Engineering Pty Limited [2005] NSWSC 880; (2005) 12 BPR 23,355
Circuit Finance Pty Limited v Crown & Gleeson Securities Pty Limited [2005] NSWSC 997; (2005) 12 BPR 23,403
Wildschut v Borg Warner Acceptance Corporation (Aust) Limited (1987) 4 BPR 9453
Wright v Bridge Wholesale Acceptance Corporation (Australia) Limited [1993] 1 VR 502
Kingstone Constructions Pty Limited v Crispel Pty Limited (1991) 5 BPR 11,987
Toma Services Pty Limited v Kusido Hospitality & Property Group Pty Limited [2008] NSWSC 492
Equititrust Limited v Manttan [2010] NSWCA 95

PARTIES: Plaintiff: Michael Alan Manttan
Defendant: Equititrust Limited

FILE NUMBER(S): SC 2010/91165

COUNSEL: Plaintiff: D E Baran
Defendant: M W Young

SOLICITORS: Plaintiff: Burkett & Taylor Lawyers
Defendant: Bransgroves Lawyers

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Thursday, 12 August 2010

2010/91165 Michael Alan Manttan v Equititrust Limited

JUDGMENT

1 HIS HONOUR: This is an application pursuant to s 74MA of the Real Property Act 1900 (NSW) for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Manttan v Equititrust Limited

Details

AGLC: Manttan v Equititrust Limited [2010] NSWSC 931
Case: [2010] NSWSC 931
Decision Date: 12 August 2010

CaseChat Overview and Summary

The case of Manttan v Equititrust Limited involved a dispute over the withdrawal of a caveat and the removal of a restraint on the defendant from lodging further caveats. The plaintiff sought this relief under section 74MA of the Real Property Act 1900. The parties had entered into a deed of guarantee and indemnity, where the plaintiff charged an interest in land in favour of the defendant and agreed to execute additional security at the defendant's request. The defendant lodged caveats claiming an interest as the equitable mortgagee pursuant to an unregistered second mortgage. The plaintiff sought to remove the caveats to enable the sale of the properties to proceed. However, there was evidence suggesting that the properties would be sold below the current market value to the plaintiff's acquaintances.

The court was required to determine whether the defendant had a caveatable interest, whether the caveat sufficiently described this interest, whether the caveat had no proper purpose and was maintained to exert illegitimate pressure on the plaintiff, and whether the caveat should be removed because the first mortgagee would receive the entire proceeds of the sale of the property. Additionally, the court needed to assess whether the defendant had a legitimate interest in refusing to remove the caveat, and whether removing the caveat without providing alternative security would prejudice the defendant by creating a risk of loss of priority and receiving fewer proceeds from the realisation of the property.

The court found that the defendant did have a caveatable interest, as evidenced by the deed of guarantee and indemnity and the unregistered second mortgage. The court determined that the caveat was sufficiently descriptive of the interest claimed. However, the court found that the defendant's maintenance of the caveat was for an improper purpose, exerting illegitimate pressure on the plaintiff. The court also found that the caveat should be removed, as the first mortgagee would receive the entire proceeds of the sale of the property. Nevertheless, the court ruled that the defendant had a legitimate interest in refusing to remove the caveat, as providing no alternative security would prejudice the defendant by creating a risk of loss of priority and receiving fewer proceeds from the realisation of the property. Consequently, the court ordered that the caveat be removed, but the defendant was to receive alternative security to protect their interests.

Orders