Background
W.E Finance Group Pty Ltd provided mortgage-brokering services to Vivian Sinatambou and Dawn Mary Anne Sinatambou, the joint owners of properties in Caringbah South and Surry Hills. Between October 2025 and January 2026, the parties signed three terms-of-engagement documents concerning proposed loans. Each document purported to charge the defendants’ property to secure the broker’s fees and authorised W.E Finance to lodge caveats.
None of the proposed loans proceeded. W.E Finance claimed $255,860 in unpaid fees and lodged three caveats over the properties. After the defendants served lapsing notices, W.E Finance applied under the Real Property Act 1900 (NSW) to extend the caveats. The defendants wanted the caveats removed so they could refinance and address financial pressures.
The Court’s Holding
Bennett J declined to extend the caveats. The defendants conceded, and the Court accepted, that W.E Finance had shown a serious question to be tried concerning its asserted equitable charges. The decisive issue was the balance of convenience.
The Court found that the claimed amount was relatively small compared with the defendants’ estimated combined equity of approximately $2.6 million, that sufficient equity would remain after refinancing, and that maintaining the caveats would prevent refinancing and prejudice the defendants. The Court therefore allowed the existing caveats to cease operating on 2 October 2026, while granting W.E Finance leave under s 74O to lodge replacement caveats immediately after the existing mortgage was discharged and a new mortgage registered, or after 56 days, whichever occurred first. W.E Finance was ordered to pay the defendants’ costs on the ordinary basis.
Key Takeaways
- Establishing a serious question to be tried does not by itself justify extending a caveat; the caveator must also establish that the balance of convenience favours continued protection.
- A court may give substantial weight to an owner’s need to refinance, particularly when the caveated claim is modest compared with the equity expected to remain in the properties.
- Leave to lodge replacement caveats after refinancing can balance the caveator’s asserted proprietary interest against the registered owners’ immediate financial needs.
Why It Matters
The decision illustrates the practical, injunction-like analysis applied to applications under s 74K of the Real Property Act. Even where an equitable charge is seriously arguable, a caveat may be allowed to lapse if it disproportionately obstructs refinancing and the asserted interest can remain adequately protected through a tailored alternative order.