The Court refused leave under s 74O(2) of the Real Property Act 1900 (NSW) to lodge a further caveat over property acquired by the defendant through survivorship. The Court held that the equity of exoneration did not arise where the deceased was a joint borrower who directly benefited from the loan, rather than a surety; that the CBA's application of sale proceeds to discharge a cross-secured mortgage was not a mistaken payment giving rise to a caveatable interest; and that the evidence was insufficient, even on a prima facie basis, to establish a Baumgartner constructive trust where the terms of the alleged joint endeavour remained inadequately explained. The Court noted that the plaintiff's contentions were more apt for freezing order proceedings than for establishing a caveatable interest.
The full text is available to signed-in members.