Permanent Custodians v Bertola [2015] WASC 301

The lender efforts to sell were repeatedly stymied by a ‘serial caveator’ lodging nuisance caveats, alleging he was a long term lessee.

The court said:

The grant of any lease without the consent of the plaintiff would have been a breach of the terms of the mortgage and the memorandum of provisions. Furthermore, even if the caveator did in fact have the alleged long term lease it would not prevent the sale of the property by the mortgagee exercising power of sale. There clearly was no serious question to be tried. Put simply, the interest of the prior registered mortgagee is paramount and indefeasible against the alleged subsequent interest of the caveator which is both unregistered and later in time than the mortgage.

The court restrained the serial caveator from registering any further caveats except with leave of the court and ordered him to pay the lender’s costs.

Click here to read the full judgment.

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