Perpetual Pty Ltd v National Australia Bank Ltd

The plaintiff, Perpetual Pty Ltd, sought an order extending the operation of a caveat registered against a property to protect their rights under an option to purchase the property. The defendant, National Australia Bank Ltd, opposed the application. The court was required to decide whether the caveat could be extended to protect the plaintiff's rights under the option, given that the defendant's mortgage was registered prior to the caveat. The court also needed to determine if the option and the caveat were used as devices to resist the claims of creditors.

The court considered the relevant provisions of the Transfer of Land Act 1893 and previous cases such as Mark Anthony Conlan (as Liquidator of Oakleigh Acquisitions Pty Ltd) v Registrar of Titles, Pindan Pty Ltd v Sonny's Redevelopment Pty Ltd, and Lyus v Prowsa Developments Ltd. The court found that the onus was on the plaintiff to demonstrate that they had a claim with substance. However, the court noted that the Bank had an indefeasible title, and the Bank's prior registered interest in the property must prevail over the plaintiff's subsequently registered interest. The court also disregarded allegations made in an affidavit by an officer of the Bank, as the plaintiff's counsel had not had the opportunity to consider the affidavit.

The court concluded that the prior right of the Bank to exercise the power of sale under the Mortgage could not be defeated by the proprietor of a subsequent equitable interest in the property. The court discharged the order extending the operation of the caveat and ordered the plaintiff to pay the defendant's costs of the application. The court's decision was based on the fact that the defendant's mortgage was registered prior to the plaintiff's caveat, and the court found no evidence of fraud or misconduct by the defendant.

The final orders of the court were that the order extending the operation of the caveat be discharged and that the plaintiff pay the defendant's costs of the application, to be taxed.