Monday, 28 November 2011

Swanton's case doubted

In Stone v Leonardis [2011] SASC 153 the Supreme Court of South Australia held at [36] that in principle a registered proprietor could lodge a caveat on title to protect its own interests.

 In Stone the registered proprietor lodged a caveat preventing a mortgagee of the land settling on a contract of sale.  The registered proprietor's allegation was the mortgagee had improperly exercised the power of sale by entering into a contract for less than the market value.

 It has been held in Victoria that in such circumstances a mortgagor did not have an equitable interest but had a mere equity to set the sale aside.

See: Swanton Mortgage Pty Ltd v Trepan Investments Pty Ltd [1994] 1 VR 672 and Vasiliou v Westpac Banking Corporation (2008) 19 VR 229.

White J held that Swanton was "clearly wrong" and that the court should not follow it.  However, in the circumstances  of the case His Honour decided that the caveat should be removed.

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Author: Robert Hays Barrister subject to copyright under DMCA.

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