The recent decision in Ta Lee Investments Pty Ltd v Antonios [2019] NSWCA 24 ruled that a lender simply having a right to ‘lodge and maintain a caveat’ is not enough to support a caveat itself. The case involved Ta Lee Investments (‘Ta Lee’) who entered into a Deed of Loan with property developers MV Developments after providing them a loan of $1.5 million. The deed stipulated that under clause 7.2 the lender may lodge and maintain a caveat on the titles to the site until such time the Lender receives full payment. The Court ruled that clause 7.2 did not give rise to an equitable interest or charge due to an absence of reference to any language that would indicate Ta Lee having an interest e.g. “security”, “secured interest” or “cavetable interest”.  It was determined that the clause must expressly create an equitable interest in the land or charge it with the obligation. As result of the defective Loan Deed, Ta Lee was an unsecured creditor for its $1.5 million loan when MV developments went into liquidation.

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