ABOVE ALL RIGGING & SITE MODIFICATIONS PTY LTD -v- LANG [2015] WASC 414
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 414 | |
| 03/11/2015 | |||
| Case No: | CIV:2701/2015 | 29 OCTOBER 2015 | |
| Coram: | MITCHELL J | 29/10/15 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | ABOVE ALL RIGGING & SITE MODIFICATIONS PTY LTD RUSSELL STUART LANG KERYN DIANNE LANG THE REGISTRAR OF TITLES |
Catchwords: | Real property Application to extend caveat Whether equitable charge arises from provision of guarantee permitting creditor to lodge a caveat Where defendants adduced uncontradicted oral evidence that loan the subject of the guarantee had been repaid |
Legislation: | Transfer of Land Act 1893 (WA), s 138B, s 138C |
Case References: | Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424 Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549 Avco Financial Services Ltd v White [1977] VR 561 Bashford v Bashford [2008] WASC 138 Bateson v Jones [2013] WASC 8 Bofinger v Kingsway Group Ltd [2009] HCA 44; (2009) 239 CLR 269 Bride v The Registrar of Titles [2015] WASC 11 Dominion Lifestyle Tower Apartment Pty Ltd v Global Capital Corporation Pty Ltd [2004] VSC 307; (2004) ANZ Conv R 561 Miluc Pty Ltd and Commissioner of State Revenue [2008] WASAT 68; (2008) 59 SR (WA) 50; (2008) 71 ATR 133 Nudd v Official Trustee in Bankruptcy [2002] NSWSC 399 Southern Wine Corp Pty Ltd (in liq) v Frankland River Olive Co Ltd [2005] WASCA 236; (2005) 31 WAR 162 Troncone v Aliperti (1994) 6 BPR 13,291; (1994) ANZ Conv R 411 Yaran Holdings Pty Ltd v Goldsmith 7 Pty Ltd [2014] WASC 171 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
RUSSELL STUART LANG
KERYN DIANNE LANG
First Defendants
THE REGISTRAR OF TITLES
Second Defendant
Catchwords:
Real property - Application to extend caveat - Whether equitable charge arises from provision of guarantee permitting creditor to lodge a caveat - Where defendants adduced uncontradicted oral evidence that loan the subject of the guarantee had been repaid
Legislation:
Transfer of Land Act 1893 (WA), s 138B, s 138C
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff : Mr B P Wheatley
First Defendants : In person
Second Defendant : No appearance
Solicitors:
Plaintiff : Mossensons
First Defendants : In person
Second Defendant : No appearance
Case(s) referred to in judgment(s):
Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424
Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549
Avco Financial Services Ltd v White [1977] VR 561
Bashford v Bashford…
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- Case
- [2015] WASC 414
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the provision of a guarantee, which allowed the creditor to lodge a caveat, could give rise to an equitable charge. The court needed to determine if such an equitable charge existed and, if so, whether it justified the continuation of the caveat. The respondent submitted that the guarantee did not constitute a proprietary interest and, therefore, could not support the lodging of a caveat. The applicant argued that the guarantee was sufficient to create an equitable charge, thereby justifying the caveat.
The court examined the nature of the guarantee and concluded that it did not confer a proprietary interest upon the creditor. The court found that the evidence presented by the respondent, that the loan secured by the guarantee had been repaid, was uncontradicted and therefore established that the underlying debt no longer existed. Consequently, the court held that the applicant had no basis for maintaining the caveat. The court dismissed the application on the grounds that the equitable charge alleged by the applicant did not exist.
The final orders of the court were that the application to extend the caveat was dismissed.
Orders
Orders of the court
Application dismissed
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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