Swanton’s case doubted

  • Author : Robert Hay QC - 27-11-2011

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 andVasiliou v Westpac Banking Corporation (2008) 19 VR 229. White J held that Swanton was "clearly wrong" and that the court would not follow it. However, in the circumstances of the case His Honour decied that the caveat should be removed.

About the Author

Robert Hay QC

Recent Posts

The Mortgagee’s Power of Sale

Robert Hay QC Date: 18-10-2019

“Retail premises leases” cannot jump out of the Retail Leases Act 2003

Robert Hay QC Date: 04-10-2019

Retail premises leases can “jump out” of the Retail Leases Act

Robert Hay QC Date: 01-08-2019

High Court affirms traditional test for enforcing oral contracts based on acts of part performance

Robert Hay QC Date: 20-11-2018

Estate agents’ commission fiasco to be fixed

Robert Hay QC Date: 26-06-2018

VCAT loses jurisdiction to hear a dispute where a party is not resident in Victoria

Robert Hay QC Date: 24-04-2018