Gambling with your property rights: A review of recent cases in property law

26 Jul 2019

Introduction

1 In a recently concluded series of cases arising out of a property development in Lane Cove, the NSW Supreme Court and Court of Appeal were required to examine a number of important aspects of property and procedural law, ranging from indefeasibility under the Torrens Title system, to caveats and the concept of legal tender under sale of land contracts: see Ta Lee Investment Pty Ltd v Antonios [2019] NSWCA 24, Lum v M V Developments (Lane Cove) Pty Limited (in liq) [2018] NSWSC 247, Lum v M V Developments (Lane Cove) Pty Limited (in liq) [2018] NSWSC 1129 and Lum v M V Developments (Lane Cove) Pty Limited (in liq) [2016] NSWSC 1248.

2 This paper discusses those decisions and their implications for practice.

The facts

3 MV Developments (Lane Cove) Pty Ltd (in liquidation) (the Company) purchased a number of adjoining properties in Lane Cove and developed the ‘Aurora’ apartments on the land (the Development).

4 The Company borrowed money from, and granted registered mortgages to, Westpac Banking Corporation, Win Mezz No. 75 Pty Ltd and Win Senior No. 123 Pty Ltd (the Mortgagees). The Mortgagees were paid in full by the sale of lots in the development and the mortgages were discharged.

5 A number of other entities, including Gold Stone Capital Pty Ltd (Gold Stone) and Ta Lee Investments Pty Ltd (Ta Lee), asserted that the Company had also borrowed money from them and granted to them equitable interests in the Development.

6 Ta Lee claimed that in 2011, the Company borrowed $1.5 million from it, and pursuant to a Deed of Loan and Guarantee (the Deed), granted security in the form of a ‘right to caveat’ on the title of the Development. On 23 June and 4 August 2015, Ta Lee lodged two caveats over the title to all of the strata lots in the Development.

7 On 29 June 2012, Bradley and Mark Lum entered into contracts for sale with the Company to purchase lots 49 and 50 in the Development. They released their ‘deposits’, being the majority of the purchase prices, to the Company for its use in funding the Development. In 2015, the Lums lodged caveats over lots 49 and 50.

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Joshua Knackstredt

Solicitor 2005
Barrister 2007

02 9151 2937

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Michael Connor

Solicitor 2010
Reader 2018

02 9151 2973

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TAGS:  Commercial,  Equity

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