Wichniewicz v Registrar Of Titles [2014] WASC 18

The mortgagee in possession sought removal of the owner’s caveat to permit settlement. The owner then applied to the court to extend his caveat.

The obstacle was that even if it were assumed that the owner had an equity to rescind the sale on the basis of a fraudulent or improper mortgagee sale sufficient to support a caveat, the balance of convenience strongly weighed against any extension for the following reasons:

  1. The owner gave no undertaking as to damages;
  2. The interests of third parties, including the purchasers and other creditors – the accrual of interest meant that with every day settlement was delayed, there would be less surplus from the sale remaining for the creditors; and
  3. The owner had no equity in the land;
  4. Removal of the caveat did not defeat the owner’s alleged monetary claims.

The court refused the extension.

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