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  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.
My clerk can be contacted via this link http://www.greenslist.com.au/ if you wish to retain my services for any legal matter which is within the gamut of my legal experience.
Author: Robert Hays Barrister subject to copyright under DMCA.