Palazzo Homes Pty Ltd v Goh

Palazzo Homes Pty Ltd sought an extension of a caveat from an absolute caveat to a subject to claim caveat against Goh. The dispute came before the Supreme Court of New South Wales. The central issue was whether the court had the power to make the amendment to the caveat and if so, whether it should be done in this case. Another consideration was whether the balance of convenience favoured the extension of the caveat and if an undertaking as to damages was necessary.

The court considered that if the caveat were to be amended, the balance of convenience favoured the extension of the operation of the caveat. The court noted that in previous cases, it had been held that balance of convenience was a factor to be considered but that interlocutory removal of a caveat would be unusual if an arguable case was demonstrated. However, in this case, if the caveat's operation was not extended, the plaintiff would lose its priority over the second mortgage to Westpac. The court concluded that the balance of convenience favoured the extension of the operation of the caveat.

The court also considered the requirement for an undertaking as to damages. It found that the usual practice was to require such an undertaking as the price of extending the operation of the caveat. However, the court could dispense with this requirement in appropriate cases. In this case, the court considered it appropriate for the plaintiff to give the usual undertaking as to damages.

The court ordered that the plaintiff's caveat be extended from an absolute caveat to a subject to claim caveat, on the condition that the plaintiff give the usual undertaking as to damages.