Above All Rigging & Site Modifications Pty Ltd v Lang [No 2] - [2015] WASC 415

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: ABOVE ALL RIGGING & SITE MODIFICATIONS PTY LTD -v- LANG [No 2] [2015] WASC 415

CORAM: MITCHELL J

HEARD: 2 NOVEMBER 2015

DELIVERED : 2 NOVEMBER 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:

Practice and procedure - Application for further orders following dismissal of application to extend caveat - Reconsideration of unperfected order - Injunction pending proposed appeal

Legislation:

Civil Judgments Enforcement Act 2004 (WA), s 15
Rules of the Supreme Court 1971 (WA), O 58 r 29
Transfer of Land Act 1893 (WA), s 138B, s 138C

Result:

Injunction granted

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):

Above All Rigging & Site Modification Pty Ltd v Lang [2015] WASC 414
Apache Northwest Pty Ltd v Agostini [2009] WASCA 147
Bashford v Bashford [2008] WASC 138
Chiodo v Murphy & Doherty [1996] ANZ ConvR 160
Davies v Davies [2009] WASCA 238
Murphy v Wright (1992) 5 BPR 11
Norman v Norman (1992) 6 WAR 372
Paringa Mining & Exploration Company Plc v North Flinders Mines Ltd (1988) 165 CLR 452
Perdaman Chemicals and Fertilisers Pty Ltd v Griffin Coal Mining Company Pty Ltd [2011] WASCA 188
Porter v McDonald [1984] WAR 271
Re Westpac Banking Corporation [2015] NSWSC 869

MITCHELL J:
(This judgment was delivered extemporaneously and has been edited from the court's record of the decision.)

This is the plaintiff's application by chamber summons dated 30 October 2015, made following my decision on 29 October 2015 to dismiss the plaintiff's originating summons.[1] The originating summons sought orders for the extension of a caveat pursuant to s 138C of the Transfer of Land Act 1893 (WA) and, in the alternative, injunctive relief. The orders which the plaintiff now seeks are that:
1.The plaintiff's caveat be extended for 21 days from 29 October 2015, provided that if the plaintiff does not file an appeal within that time, the plaintiff's caveat shall lapse at midnight on 19 November 2015.
2.In the event that the plaintiff files and serves an appeal within 21 days from 29 October 2015, the operation of the caveat shall be extended until further order.
3.There be liberty to apply on 48 hours' notice.
[1] Above All Rigging & Site Modification Pty Ltd v Lang [2015] WASC 414.

Jurisdiction

The first question which arises is whether I have jurisdiction to make the order sought. It is necessary to consider that question in light of the provisions of s 138B and s 138C of the Transfer of Land Act.
Section 138B(1) enables a registered proprietor to apply for the Registrar of Titles to serve a caveator…

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 415
Decision Date: 3 NOVEMBER 2015

CaseChat Overview and Summary

The case involves an application by Above All Rigging & Site Modifications Pty Ltd for further orders following the dismissal of its application to extend a caveat. The application was made in the Supreme Court of Western Australia. The legal issues the court was required to decide included whether it was appropriate for a judge to resolve conflicts of evidence on affidavit in an application to extend the operation of a caveat, the admissibility of evidence of repayment of a debt, and the power to make ancillary orders in relation to the application.

The court considered the arguments put forward by the plaintiff, including the contention that the court should not attempt to resolve conflicts of evidence on affidavit in an application to extend the operation of a caveat. The court found that there was no relevant conflict in this case as the defendant had not claimed that any amount was owing. The court also considered the admissibility of evidence of repayment of a debt, finding that the evidence was admissible as it did not involve a significant degree of hearsay and no objection was raised at the time it was given. The court concluded that the plaintiff had not established that the debt was still owed, and therefore had not satisfied the condition for the court's power to extend the caveat.

The court also considered the power to make ancillary orders in relation to the application, finding that such orders could not be used to extend a caveat where the court was not satisfied that the caveator's claim had or may have substance. The court found that the power to recall an unperfected order did not give it the power to extend the caveat in circumstances where the Transfer of Land Act denied that power.

The final orders of the court were that the application for further orders be dismissed and that the plaintiff pay the respondent's costs of the application.

Orders

Orders of the court

Full text does not contain this section.

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

I was also referred to a decision of the New South Wales Supreme Court in Re Westpac Banking Corporation,[3] which was said to involve an equitable charge implied by the terms of a guarantee. However, it seems clear that what was in fact involved in that case was a loan agreement rather than a guarantee.[3] Re Westpac Banking Corporation [2015] NSWSC 869, [16] ‑ [20]. I am also not persuaded that I erred in concluding that, even if an equitable charge was created, the plaintiff had not established that the charge was still on foot because it had not produced any evidence that the money secured was still owed. Counsel for the plaintiff again submitted that, on an application to extend the operation of a caveat, it is not appropriate for a judge to attempt to resolve conflicts of evidence on affidavit.[4] As I indicated in my previous decision, in this case there is no relevant conflict because Mr Coward has not said that any amount is owing. The onus of establishing that fact was on the plaintiff, and the onus was not discharged.[5][4] Porter v McDonald [1984] WAR 271, 276. See also Bashford v Bashford [2008] WASC 138 [48]; Bride v The Registrar of Titles [2015] WASC 11 [13].[5] AboveAll Rigging [28]. Counsel also submitted that the evidence of Mrs Lang, to the effect that the debt the subject of the deed of acknowledgment of debt had been repaid, was inadmissible. Although the evidence involved a degree of hearsay, I consider that it was admissible.[6] In any event, counsel did not object to the evidence when it was given.[6] See O 37 r 6 (2)(c) of the Rules of the Supreme Court 1971 (WA). On the evidence before me, I remain unsatisfied that the plaintiff's claim has or may have substance. The condition for my power to extend the caveat referred to in s 138C of the Transfer of Land Act has not been established. Counsel for the plaintiff submitted that the power to make ancillary orders in relation to the application, conferred by s 138C(2)(c) of the Act, would allow me to dismiss the application subject to an extension of the caveat pending appeal. However, s 138C(2)(c) must be read with the balance of the section, which makes it clear that a caveat can be extended only if the court is satisfied that the caveator's claim has or may have substance, and otherwise must be dismissed. I cannot see how an order extending a caveat is ancillary to the dismissal of an application to extend the caveat. Counsel also referred to the court's discretion to recall an order which has not been perfected.[7] As I have indicated, I am not persuaded that the order I made was incorrect. Recalling the order would not overcome the requirement for me to be satisfied that the plaintiff's claim has or may have substance before making an order extending the caveat.[7] Norman v Norman (1992) 6 WAR 372. Counsel for the plaintiff also relied on O 58 r 29(f) of the Rules of the Supreme Court 1971 (WA), which enables the court, on an application by originating summons, to give any special direction touching the carriage or execution of the judgment, or the service thereof upon persons not parties, as it thinks just. Again, I cannot see that that rule gives me the power to extend the caveat in circumstances where the Transfer of Land Act denies that power.