Gippsreal v Garner Transport & Haulage [2006] NSWSC 1229

In this case the lender is applying to set aside a previous dismissal of proceedings and also extend the operation of a caveat. The lender claims an interest under a mortgage dated 10 October 2002. Justice Brereton agreed to set aside the dismissal of proceedings as both parties did not attend and therefore this suggests some misunderstanding provided that there is a seriously arguable claim for a caveatable interest. The facts show that on 12 November 2004 the mortgage was discharged and this discharge was registered. Justice Brereton distinguished between a building contract where the interest survives even after termination of the contract and a mortgage (as in the present case) where discharge releases the land from any ongoing obligations. The court confirmed that obligations under the mortgage may survive as personal obligations only as the land had been released from any ongoing obligations when the mortgage was discharged. Therefore the extension of the caveat was denied.

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