Alcoa of Australia Limited v Gangemi
[2025] WASC 204
•22 MAY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: ALCOA OF AUSTRALIA LIMITED -v- GANGEMI [2025] WASC 204
CORAM: MCGRATH J
HEARD: 22 MAY 2025
DELIVERED : 22 MAY 2025
FILE NO/S: CIV 1530 of 2025
BETWEEN: ALCOA OF AUSTRALIA LIMITED
Plaintiff
AND
FRANCES GANGEMI
First Defendant
REGISTRAR OF TITLES
Second Defendant
Catchwords:
Real property - Application to extend caveat - Easement - Serious question to be tried - Balance of convenience favours maintenance of caveat - Turns on own facts
Legislation:
Transfer of Land Act 1893 (WA)
Result:
Caveat extended
Representation:
Counsel:
| Plaintiff | : | Ms R King |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Corrs Chambers Westgarth |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
Case(s) referred to in decision(s):
Bateson v Jones [2013] WASC 8
Bride v The Registrar of Titles [2015] WASC 11
Brogue Tableau Pty Ltd v Binningup Nominees Pty Ltd [2007] WASCA 179
Pezzano Enterprises Pty Ltd v Mias [2023] WASC 168
MCGRATH J:
(This judgment was delivered extemporaneously on 22 May 2025 and has been edited from the transcript).
The plaintiff has applied by an originating summons dated 21 May 2025 for an order of the Court pursuant to s 138C of the Transfer of Land Act 1893 (WA) (the TLA) extending until further order, the operation of two caveats lodged against a portion of the land described as Lot 240 on Plan 2087, registered on Certificate of Title Volume 1658 Folio 874 (the Property) bearing registration numbers A422163 and A422159 (the Caveats).
The plaintiff received notice from the Registrar of Titles by way of letter dated 29 April 2025, that the first defendant made application under s 138B of the TLA that the Caveats will lapse within 21 days unless the plaintiff obtains an order extending the operation of the Caveats. The Caveats expire at midnight tonight. Therefore, this application is made ex parte. The plaintiff has satisfactorily explained that the delay was caused by inadvertence.
Having read the affidavit material and taking into consideration the matters put before the court by counsel for the plaintiff, I am satisfied that the Caveats should be extended, on an interim basis until further order of the Court, for the following reasons.
Relevant facts and affidavit material
The plaintiff relies upon the affidavit of Ms Jacobs, solicitor in the employment of the plaintiff, affirmed 21 May 2025.
Ms Jacobs deposes that the plaintiff operates an integrated bauxite mining and alumina refining business in Western Australia which is underpinned by numerous agreements.[1] Ms Jacobs further deposes that production at the Kwinana Alumina Refinery was curtailed in 2024 which means that the refinery is currently in care and maintenance. However, the Kwinana Alumina Refinery and associated residue storage facilities continue to be actively managed to ensure compliance with statutory obligations.[2]
[1] Affidavit of Ms Jacobs [11] - [17].
[2] Affidavit of Ms Jacobs [14].
Ms Jacobs produces two letters from the Registrar of Titles to the plaintiff dated 29 April 2025 confirming that the first defendant had applied under s 138B of the TLA to remove the respective Caveats on the property.[3] Ms Jacobs states that the Caveats will lapse at midnight on 22 May 2025 subject to any order of the court extending the Caveats. Ms Jacobs explains the background reason for the matter being brought effectively on the last business day and thereby the matter being heard ex parte. I am satisfied that the late application and the need to hear the matter ex parte has arisen due to inadvertent circumstances.[4] The plaintiff has provided an undertaking as to damages in the usual terms.
[3] Annexure NJ-06.
[4] Affidavit of Ms Jacobs [19] - [22].
Caveat A422163 is in respect to a Grant of Easement granted by Mr & Mrs Hoffman in favour of the plaintiff dated 14 December 1970. Caveat A422159 is in respect to the Grant of Easement granted by Mr & Mrs Bombara to the plaintiff dated 14 December 1970. The easements are in similar terms which comprise, in part, transferring and granting to the grantee, full free and unrestricted right and liability for the grantee from time to time and at all times hereafter to enter and remain upon the land for the purpose of constructing and maintaining pipelines. The Caveats were lodged with the Registrar of Titles on 23 July 1971.
Ms Jacobs deposes that the Kwinana Alumina Refinery has a residual area where residue or waste from the production processes is captured, stored and reused. The easements are required by the plaintiff in the event that the Kwinana Alumina Refinery closes, given that there is a continuing requirement to treat water and discharge from the Kwinana residual area. The easements granted the plaintiff a right, amongst other things, to access the relevant property, to lay a pipeline on the property and operate the pipeline.
Ms Jacobs deposes that if the Caveats lapse, the plaintiff will not be able to lay any pipeline as intended and would need to develop an alternative method for treating the waste and the residue.[5]
[5] Affidavit of Ms Jacobs [32].
Principles governing an application for extension of a caveat under s 138C of the TLA
Section 137 of the TLA provides that any person claiming an interest in land may lodge a caveat. A caveat has the effect of preventing registration of any dealing against the land until the person who lodged the caveat has an opportunity to justify the caveat.[6]
[6] Brogue Tableau Pty Ltd v Binningup Nominees Pty Ltd [2007] WASCA 179 [68].
Section 138C of the TLA provides that the court may make an order to extend a caveat:
138C.Supreme Court’s powers on application by caveator
(1)A caveator who is served with a notice under section 138B(1) may apply to the Supreme Court, in accordance with rules of the court, for an order extending the operation of the caveat.
(2)On the hearing of an application under subsection (1), the Supreme Court -
(a)if satisfied that the caveator’s claim has or may have substance -
(i)may make an order extending the operation of the caveat for such period as is specified in the order; or
(ii)may make an order extending the operation of the caveat until the further order of the court; or
(iii)may make such other orders as it thinks fit concerning the caveat or the land in respect of which the caveat was lodged;
and
(b)if not satisfied that the caveator’s claim has or may have substance, shall dismiss the application; and
(c)may make such ancillary orders in relation to the application as it thinks fit.
(3)An interim order under this section may be made ex parte unless the court orders otherwise.
(4)The applicant shall ensure that the Registrar is served with a copy of each order made by the court on an application under subsection (1).
The relevant principles upon an application to extend the operation of a caveat were outlined by Lundberg J in Pezzano Enterprises Pty Ltd v Mias:[7]
The principles this court will apply in determining an application such as the present are well settled and were summarised by Beech J (as his Honour then was) in Bashford v Bashford [2008] WASC 138. The relevant principles include the following:
(a)The onus is on the caveator to demonstrate that there is a serious question to be tried as to whether a caveatable interest exists: Bashford at [47].
(b)It is not appropriate to attempt to resolve conflicts of evidence on affidavit: Bashford at [48].
(c)The caveat will not be removed unless the claim to an estate or interest in the land appears to be without foundation: Bashford at [49].
(d)The balance of convenience is a factor to be considered in an application to extend the operation of a caveat. However, interlocutory removal of a caveat will be unusual where an arguable case as to the existence of a caveatable interest has been demonstrated. That is because the purpose of a caveat is the protection of a proprietary interest. Removal of the caveat will, in many cases, have the effect of destroying the benefit of the proprietary interest claimed in the caveat: Bashford at [50].
[7] Pezzano Enterprises Pty Ltd v Mias [2023] WASC 168 [19].
Edelman J in Bride v The Registrar of Titles,[8] explained the issues which arise on a caveat extension application in the following manner:
[12]In assessing whether to grant the extension of the caveat the two broad issues are (1) whether the caveator's claim in respect of the estate or interest in land 'has or may have substance' and (2), whether the balance of convenience favours the retention of the caveat and the appropriate orders to be made.
[13]The first issue is whether the caveator's claim in respect of the estate or interest in land 'has or may have substance'. This is sometimes expressed as whether the caveator can show that there is a serious question to be tried, or whether the caveator can prove a prima facie case. In assessing whether the caveator has proved that the claim has, or may have substance, the court does not ordinarily evaluate the applicant's evidence or undertake a preliminary trial.
[14]The requirement that the caveator's claim of substance be in respect of a claim of an 'estate or interest in land' has been held to mean that the claim must concern a proprietary interest in land.
[15]The second issue is the balance of convenience in extending the caveat. The court considers the balance of convenience when it decides whether to exercise its discretion to extend the caveat. The balance of convenience is not independent of the strength or weakness of the caveator's claim. Rather, the apparent strength or weakness of the case for relief at trial is a relevant consideration on the balance of convenience.
[16]An important factor in considering the balance of convenience is if the failure to extend a caveat will have the effect of destroying, or substantially impairing, the benefit of the proprietary interest which is claimed. (footnotes omitted)
[8] Bride v The Registrar of Titles [2015] WASC 11 [12] ‑ [16].
I am also mindful of the observations of Pritchard J in Bateson v Jones:[9]
The existence of a serious question to be tried involves showing a sufficient likelihood of success to justify the preservation of the status quo in all of the circumstances. How strong the likelihood of success needs to be depends upon the nature of the rights asserted and the practical consequences likely to flow from the order sought: see Perron Investments Pty Ltd v Tim Davies Landscaping Pty Ltd [2009] WASCA 171 [42] ‑ [44] (Newnes JA, referring to Australian Broadcasting Corp v O'Neill [2006] HCA 46; (2006) 227 CLR 57, 82). Consequently, whether there is a serious question to be tried, and the consideration of those factors going to the balance of convenience, are not wholly independent inquiries.
[9] Bateson v Jones [2013] WASC 8 [19].
Assessment of application
I am satisfied there is a serious question to be tried and that the balance of convenience does favour extending the Caveats, on an interim basis, until further order of the court.
The plaintiff was granted the easements in 1970 for the purpose of facilitating its business interests. The plaintiff has developed and conducted its business during the period since 1970 having that right of easement.
At this time, the issues that the first defendant has with the continuation of the Caveats and with the easement are not known. There is no evidentiary basis to assert that the balance of convenience does not favour extending the Caveats, on an interim basis, until the first defendant ventilates her position, and the court determines the matter.
I am satisfied there will be an injustice to the plaintiff should the extension of the Caveats not be granted. In the absence of the extension of the Caveats, the plaintiff’s right of easement will cease. In light of the limited evidence that I have before me, the lapsing of the Caveats and the consequential loss of the right of easement may impact detrimentally on the plaintiff’s lawful business being conducting at the Kwinana Alumina Refinery. In particular, in respect to the development of any future pipeline.
Orders
I order that, pursuant to s 138C(3) of the TLA, the operation of caveats A422163 and A422159 lodged against a portion of the land described as Lot 240 on Plan 2087, registered on Certificate of Title Volume 1658 Folio 874, be extended on an interim basis until further order of the court. It is now necessary that the first defendant appear and be heard at a directions hearing.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CEM
Associate to the Hon Justice McGrath
23 MAY 2025
0
8
1