The Croatian Club Limited v Westwood Capital Pty Limited

[2024] NSWSC 895

Supreme Court of NSW

Built by Barristers,
For Australian Law.

1. Real Property
2. › Caveats
3. › Leave to lodge further caveat
4. › Section 74O Real Property Act 1900 (NSW)
5. › Test for grant of leave
6. › Whether serious question to be tried and balance of convenience favour grant
7. › Whether conditions should be imposed on grant of leave
1. Real Property
2. › Caveats
3. › Lapsing of caveat
4. › Service of lapsing notice
5. › Whether lapsing notice served
6. › Contemporaneous documentary evidence preferred over oral recollection
7. › Real Property Act 1900 (NSW), s 74J
1. Real Property
2. › Caveats
3. › Caveatable interest
4. › Charge securing non-monetary obligations
5. › Whether charge securing performance of non-monetary contractual obligations creates caveatable interest
1. Contract
2. › Construction
3. › Option to purchase
4. › Whether entry into separate deed was condition precedent to grant of option
5. › Whether option granted by clause of contract or only upon execution of separate deed

A charge over land securing performance of non-monetary contractual obligations (here, an obligation to construct premises) is at least arguably sufficient to create a caveatable interest.
Where a contract clause grants an option in clear terms, a separate requirement to enter into a formal option deed upon request does not operate as a condition precedent to the existence of the option.
The fact that a charge secures a right of performance not yet translated into damages, and that there is no present intention to enforce the charge, does not provide a basis for refusing leave to lodge a caveat or for removing a caveat.