ABOVE ALL RIGGING & SITE MODIFICATIONS PTY LTD -v- LANG [2015] WASC 414

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASC 414
Published:	03/11/2015
Case No:	CIV:2701/2015	Heard:	29 OCTOBER 2015
Coram:	MITCHELL J	Delivered:	29/10/15
No of pages:	11	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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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

CITATION : ABOVE ALL RIGGING & SITE MODIFICATIONS PTY LTD -v- LANG [2015] WASC 414 CORAM : MITCHELL J HEARD : 29 OCTOBER 2015 DELIVERED : 29 OCTOBER 2015 PUBLISHED : 3 NOVEMBER 2015 FILE NO/S : CIV 2701 of 2015 BETWEEN : ABOVE ALL RIGGING & SITE MODIFICATIONS PTY LTD

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] WASC 414
Decision Date: 3 NOVEMBER 2015

CaseChat Overview and Summary

The case of Above All Rigging & Site Modifications Pty Ltd v Lang involved a dispute concerning a property in New South Wales. The applicant sought to extend a caveat that had been lodged over the property. The respondent contested the application, arguing that the applicant had no basis for the caveat as the underlying debt, for which the caveat was intended to secure, had been repaid. The case was heard in the Supreme Court of New South Wales.

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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