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NSW Case Law Refer For Equity in Real Property

Discussion in 'Property Law Forum' started by Ronald Jemmott, 12 October 2017.

  1. Ronald Jemmott

    Ronald Jemmott Active Member

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    If money provided by a person/company to purchase a property, I heard that person/company will have equitable interest in that property.

    1) how will they prove they have an equitable interest.
    2) how should the word a caveat to register to say they have equitable interest.
    3) can you please refer me to some case law where it states they have equitable and caveatable interest.

    "If it happens that the money was used to purchase the property, then some case law says

    that the person, in some circumstances, who advances the money, may have an equitable interest in

    the property".u

    thanks you in advance.
     
  2. Rod

    Rod Well-Known Member

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    Is this homework?

    If not, please provide a few more details.
     
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  3. Ronald Jemmott

    Ronald Jemmott Active Member

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    Hi Rod. Thanks for your reply. I am wish it was homework.

    It is a live matter; a company I am involved in provided funds to a family member to purchase a property back in 2005. The property was within in that family member’s name, the company had a caveat on the property against the funds provided. The caveat was not worked correctly.. On the day that family member purchase that property, is the day the company provided the funds. There is no question the funds were provided to purchase the property.

    I am looking for some High court or supreme court cases, which stated a third party provides the funds specific for the purchase of that property have equitable or caveatable interest in that property. thanks again.
     
  4. Rod

    Rod Well-Known Member

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    1) Hopefully you have some kind of loan document/agreement
    2) Wording of caveats should be done by a lawyer. As you are now aware the wording in caveats is important else it is not recognised.
    3) 2 cases shown below.

    Barry v Heider - [1914] HCA 79 - 19 CLR 197
    Heid v Reliance Finance Corporation Pty Ltd (1983) 154 CLR 326

    You can also investigate getting a mortgage on the property using the loan agreement. If the family member doesn't co-operate and is not paying the loan back as agreed, you can look at 'calling in the debt' and selling the property.
     
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  5. Ronald Jemmott

    Ronald Jemmott Active Member

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    Thank you Rod, there was two equity/loan agreements. One of the agreements are now being questioned/contested by the other party. A second mortgage was not registered because the first mortgagee (at the time bank) will not give permission to register it so a caveat was registered instead. The caveat was done by a junior member from our office and was not worked correctly. In hindsight things will of been done differently, meaning we will of pushed for a second mortgage to be registered and worded the caveat correctly.
     
  6. Rod

    Rod Well-Known Member

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    You should still insist on a 2nd mortgage. See a lawyer to have your loan registered as it is more secure than a caveat.
     
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