Westpoint Corporation Pty Ltd v The Registrar of Titles

Westpoint Corporation Pty Ltd applied for an extension of a caveat lodged over land owned by Monteath Properties Pty Ltd, a company in liquidation. Westpoint claimed to hold a restrictive covenant over the land, which was based on oral representations made by Monteath to Westpoint prior to the sale of a lot of land in the development. The Registrar of Titles, as the second defendant, opposed the application on the basis that the plaintiff's claim did not have substance and that the balance of convenience lay in the removal of the caveat. The first defendant did not appear or file any material. Justice Jenkins held that the plaintiff had not established that it had a serious question to be tried. The representations on which it relied were either made after the contract was signed, were not specific enough to create a restrictive covenant, or, if they did create a restrictive covenant, the covenant was not in writing and was therefore not enforceable. The plaintiff had not established that the second defendant had notice of the covenant at the time it registered its first mortgage over the land. In any event, the registration of the mortgage extinguished the plaintiff's claim to a restrictive covenant. The balance of convenience lay in the removal of the caveat as the plaintiff had delayed in protecting its alleged interest. The application was dismissed.