Toma Services v Kusido Hospitality & Property [2008] NSWSC 492

The CBA held a $7 million first mortgage and the Kusido held a second mortgage protected by caveat. The Kusido had been duped as to the value of the first mortgage and it turned out that the property was worth much less than the $7 million owed to the CBA. Under the circumstances the second mortgagee’s caveat protected no equity and the borrower was successful in obtaining an order for it to be removed. This approach is consistent with last year’s decision in New Beach Apartments Pty Ltd v Epic Hotels Pty Ltd [2007] NSWSC 474.

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