Lee v Song [2005] NSWSC 698

This was an application to extend a caveat where the registered proprietor alleged extension would be futile because the caveators would get nothing from the sale.

The caveators claimed a charge over the land created by a deed of debt which expressly created such a charge.

Justice Campbell set out the principles for extending a caveat:

The principle that is applied to decide whether a caveat should be extended is the same as that which applies when an interlocutory injunction is sought.  In other words, the person seeking the extension of the caveat bears the onus of showing that there is a serious question to be tried and that the balance of convenience favours the extension of the caveat.

The property was subject to a first mortgage to St George Bank which secured a loan of $770,000. 

Justice Campbell found the balance of convenience favoured extending the caveat for these reasons:

The mortgagors, by not informing the caveators of the sale, and by, only today, giving information which enables even the most rudimentary assessment of the appropriateness of the sale to be done, has put the plaintiffs into a situation where they had no alternative but to approach the court.  I place weight on the plaintiff’s desire to have confidence that the sale is proper.  It is in any event not clear that the present contract will settle, when there is no evidence that the Bank is likely to be paid out in full, or that the other caveat is likely to be removed. 

Click here to read the full judgment

Scroll to Top