Avsar v Binning - [2014] WASC 188

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: AVSAR -v- BINNING [2014] WASC 188

CORAM: KENNETH MARTIN J

HEARD: 14 APRIL 2014

DELIVERED : 14 APRIL 2014

PUBLISHED : 3 JUNE 2014

FILE NO/S: CIV 1037 of 2013

BETWEEN: JENNIFER PATRICIA AVSAR
Plaintiff
AND
JEAN BINNING As Administratrix of Estate of John Robert Cowan
First Defendant
REGISTRAR OF TITLES
Second Defendant

Catchwords:

Civil law and procedure - Interlocutory injunctions - Prima facie case - Balance of convenience - Abuse of process - Repeatedly lodging or procuring the lodgement of caveats - Turns on own facts

Legislation:

Transfer of Land Act 1893 (WA), s 138D

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff:     In person
First Defendant             :     Ms K P Hill
Second Defendant         :     No appearance

Solicitors:

Plaintiff:     In person
First Defendant             :     Hartrey Legal
Second Defendant         :     No appearance

Case(s) referred to in judgment(s):

ABC v O'Neill [2006] HCA 46; (2006) 227 CLR 57
KENNETH MARTIN J:
(These reasons were delivered extemporaneously on 14 April 2014 and have been edited from the transcript.)

I am dealing with this matter immediately.
The matter before me, civil action 1037 of 2013, commenced with an originating summons filed in this court on 4 January 2013.
Documentation filed indicates that the plaintiffs are Jennifer Patricia Avsar in her own capacity and in the asserted capacity of administratrix of the estate of Antoinette Maria Cowan (nee Hayward). Mrs Avsar acts in person.
The named first defendant is Jean Binning as administratrix of the estate of John Robert Cowan. The second defendant is the Registrar of Titles who, in accordance with normal practice, has indicated he will abide the outcome of any decision.
The originating summons was supported by an affidavit of Yasmin Avsar, filed in this court on 4 January 2013.
At that time, Yasmin Avsar swore that her mother, Mrs Avsar, had departed Australia on 5 July 2012 to care for her disabled father who resides overseas. Hence, Mrs Avsar was not then in the jurisdiction to apply to extend her caveat L396496 within the prescribed period of 21 days. That caveat had lapsed on 17 September 2012 and Yasmin was seeking then a Supreme Court order allowing a re‑lodgement of her mother's caveat.
There was also reference in these materials to a second caveat, over the same property, M49607, lodged by a Selim Avsar, who is a son of Mrs Avsar and brother of Yasmin.
Yasmin swore in her affidavit of 24 December 2012:
On 17 September 2012, my brother Selim Avsar who is the lessee (in possession of a fixed term lease since 2004) also claims interest of the said property as holder of the interest second in time, and registered his Caveat No: M049607 over the said Certificate of Title.
Selim Avsar ('the Caveator') also received Notice from the Registrar of Titles on 21 December 2012, c/o my address, that although his Caveat was accepted by Landgate, he must seek an Order of the Supreme Court before 10 January 2013, or his Caveat will lapse at midnight. (emphasis in original)
The property in question is a unit in Adelaide Street, Fremantle, being certificate of title 1485, folio 311. The property can conveniently be referred to in these proceedings as Lot 111.
Hence, in January 2013, two caveats were then in focus, as the subject of these proceedings. First was the caveat, that had lapsed, by Mrs Avsar. Second was the caveat of Selim, which had not then but was imminently to lapse, on 10 January 2013.
There was as well an application to amend Mrs Avsar's originating summons, filed on 14 January 2013 seeking, in effect, under the amendment, to obtain, alternatively, an interlocutory injunction to restrain Mrs Binning from disposing of, charging, or encumbering, her interest in Lot 111.
On 15 January 2013, the matter came before me. The orders I made at that time were predicated upon two main factors. First, Selim Avsar, clearly an adult, was not a party to the proceedings. Second, there was no undertaking as to damages from anyone on behalf of Mrs Avsar or her family members filed to support the interlocutory injunction or, for that matter, the extension of any caveat.
On 15 January 2013, I ordered that there be leave for Mrs Avsar, as plaintiff, to file her amended originating summons. The document had actually been filed on 14 January 2013, but leave was required.
But more substantively, I refused leave for Mrs Avsar to file any further caveat under s 138D(1)(e) of the Transfer of Land Act 1893 (WA) (TLA), and I did not issue any interlocutory injunction at that time.
But I made orders that day directing for any further affidavit material to be filed in support of a claim for injunctive relief by a fixed period, and that Mrs Avsar pay the defendant's costs of that application, fixed at $352, payable forthwith.
However, a third caveat, M154323, had been lodged against Lot 111. This caveat was not filed by Mrs Avsar, or even by Selim. Rather, it was filed by Yasmin and lodged on 10 January 2013. This was the very day that Selim's caveat was due to lapse under the Registrar's notice. Materials before me today indicate the asserted basis for this third caveat was that Yasmin held an interest in Lot 111 as an 'equitable and beneficial owner'.
The basis for that alleged interest in Lot 111 in Yasmin herself, who is also an adult, was by 'facts contained in a statutory declaration lodged herewith'. A statutory declaration of Yasmin of 10 January 2013 submitted to Landgate reads:
(1)I am the lawful third grandchild of the late Antoinette Hayward (nee Cowan) and John Robert Cowan.
(2)I claim beneficial interest third in time, after my mother J.P. Avsar and my brother Selim Avsar (the lessee) and creditor owed moneys from the estates of my grandparents.
(3)I am entitled to claim interest in the said land described in certificate of title vol 1485 Folio 311 being Lot 111 on Strata plan 5493 situated at … Adelaide Street Fremantle 6160, and until final settlement of all the Avsar family's claims against the estate of my grandparents.
(4)I am also awaiting further orders in an action number CIV 1402 of 2009, by virtue of the Inheritance (Family and Dependants Provision) Act 1972 amended.
(5)The nature of the estate and interest claimed in the land is as equitable and beneficial owner of that interest.
Paragraph 4 of that statutory declaration refers to civil action 1402 of 2009 between Mrs Avsar as plaintiff and Mrs Binning as defendant, pending in this Court. The Court's electronic ICMS system indicates that there was an originating summons filed by Mrs Avsar, apparently acting in person, on 26 February 2009 and supported by an affidavit of the same day. However, no further steps appear to have been taken on that matter. Yasmin Avsar is not a party to that civil action. If there is an inheritance action by Mrs Avsar alive and on foot in this Court (although civil action 1402 of 2009 seems to be in more a state of inertia) on its face it would still provide no legitimate basis to afford an arguable caveatable interest held by Yasmin.
A pending but as yet unresolved action under the Family Provision Act 1972 (WA) (formerly the Inheritance (Family and Dependants Provision) Act 1972 (WA)) action, asking this Court to vary the terms of a will does not deliver a sufficient basis for an arguable subsisting equitable interest in land, sufficient to sustain a valid caveat.
Yasmin's caveat of 10 January 2013 appears to have had the effect of thwarting any dealings in respect of Lot 111 in that year. It appears to have indirectly accomplished that objective.
A foreshadowed further interlocutory injunction application as the subject of the amendments to Mrs Avsar's originating summons was not brought on for hearing by Mrs Avsar, after 15 January 2013.
On 30 January 2013, Mrs Avsar filed an affidavit which is the entirety of the information she now relies upon in 2014 in now pressing for her injunctive relief. That affidavit spans 19 pages in terms of substantive content. There is also a bundle of attached annexures.
This action effectively went nowhere after January 2013. But it revived under Mrs Avsar's chamber summons of 27 March 2014, by which she now moved a judge of this Court in chambers for an order for an urgent interlocutory injunction. Hence, over 14 months went by before there was anything substantive done by Mrs Avsar to seek the interlocutory injunction in respect of halting any dealings with Lot 111, as foreshadowed in January 2013.
What has now stimulated this action back into some life in March 2014? Mrs Avsar filed a certificate of urgency on 27 March 2014 at this Court's Central Office. This says:
1.I need an urgent hearing for the injunction sought as the caveat M154323 lodged on the certificate of title Lot 111 on Strata Plan 5493, Volume 1485 Folio 311 is due to lapse on 11 April 2014, upon application M580527 made to Landgate by Jean Binning giving 21 days notice for removal of caveat.
2.The defendant is attempting to dispose of the property without court orders.
3.The hearing should take less than half an hour. (emphasis in original)
On 3 April 2014 the matter came before Pritchard J. Her Honour then made programming directions on the basis of an interim undertaking offered from the defendant, Mrs Binning, that she would not proceed to settle on any sale of Lot 111. Her Honour made orders that Mrs Avsar's application for interlocutory injunctive relief as referred to in par 2 of the amended originating summons be provisionally listed for 14 April 2014 at 10.15 am. Mrs Binning was to file and serve a responsive affidavit by 10 April 2014. The costs of that hearing were reserved.
Subsequently, there has been an affidavit and written submissions filed by Mrs Binning.
There is a lengthy collection of historical materials assembled under Mrs Binning's affidavit of 10 April 2014. It runs to two volumes of material and 31 annexures. That material discloses the veritable 'tsunami' of litigation across the various courts of Western Australian which Mrs Avsar has initiated either herself or in the asserted capacity of administratrix of her late mother's estate, and generally as a litigant in person.
The sad saga of litigation extends across the Family Court of Western Australia, the District Court, in the Fremantle Magistrates Court and then on appeals from these courts.
That material provides historical insights to this 2014 application. Clearly, this action was resuscitated by the looming effects of another Registrar's notice issued in 2014 pursuant to s 138B of the TLA, which would bring to an end the third caveat by Yasmin Avsar.
On 11 April 2014 Yasmin's caveat lapsed, albeit the defendant has not verified if there is now wholly clear title (ts 72) for Lot 111.
I am very concerned as to what has occurred in respect of the filings of three (all now lapsed) caveats by different members of the Avsar family. The various caveats have delivered delays in dealings with Lot 111.
On the face of it, it is clear that s 138D(1) of the TLA says that where a Registrar's notice has not been interrupted and the caveat lapsed under s 138B(2), a caveator cannot lodge with the Registrar any further s 138A caveat in respect of the same land, unless (relevantly) by s 138D(1)(e):
(e)the Supreme Court has made an order giving leave for the lodgment of the further caveat, and a copy of that order has been served on the Registrar.
However, I assess no legitimate basis or justification for the third caveat, by which Yasmin asserted her so-called equitable interest in Lot 111. I assess that caveat as lodged to get around a failure of her mother in January 2013 to obtain leave to lodge or renew earlier caveats which her mother, Mrs Avsar, and her brother, Selim Avsar, had successively lodged against Lot 111. On 15 January 2013 I declined to allow those caveats to be renewed, or allow any fresh caveat by Mrs Avsar asserting the same interest to be lodged.
This Court is confronted by what appears as a manifest abuse of process through the filing of the third caveat by Yasmin, effectively to achieve a result blocking dealings on Lot 111 that Mrs Avsar personally could no longer achieve.
Having said all that, I can now turn to the merits (more correctly, demerits) of Mrs Avsar's arguments put to me today in person in respect of the interlocutory injunction to restrain what is threatened as a looming sale and settlement by Mrs Binning, as the registered proprietor of Lot 111.
Mrs Binning has been granted probate of her late brother's estate under orders of this Court. For the record, it appears that Mrs Avsar's mother passed away some 18 years ago, in 1996. Her former husband, Mr Cowan, survived her, only passing away in 2005 but leaving a will that, effectively, left all his estate (mainly comprising Lot 111) to his sister, Mrs Binning.
When an interlocutory injunction is sought, the first question is whether there is a prima facie case, applying the test of the High Court in ABC v O'Neill [2006] HCA 46; (2006) 227 CLR 57. That requires an assessment of the potential merits of arguments in terms of whether the plaintiff has established any prospect that they might later succeed at a trial that is sufficient to justify preserving the status quo in the interim until trial. I note that this does not mean showing that the plaintiff is more likely than not to succeed.
I pause to observe that this Court, when extending or renewing a caveat and, indeed, when asked to issue an interlocutory injunction, by its Consolidated Practice Directions, will generally require an undertaking as to damages to be provided by the applicant (see CPD 4.3.4 par 1).
The requirement is well known, even to Mrs Avsar. It was a big part of why her application for relief failed before me on 15 January 2013 (ts 13). Still today, there is no undertaking from Mrs Avsar as to damages and, even if there had been, I am satisfied on the materials before me, that Mrs Avsar is, in any event, in no position to make good upon any such undertaking. Such an undertaking would, in effect, be worthless. On that basis, the task facing Mrs Avsar today is confronting.
So, then, can I identify some reasonable or respectable argument as to a personal interest in Mrs Avsar in Lot 111 worth preserving? Is there an argument under the Family and Dependants Provision Act? I have already identified a seemingly inactive matter commenced in this Court on 26 February 2009 (civil matter 1402 of 2009). That proceeding presents as substantially inactive and going nowhere.
There were diverse and passionate arguments today by Mrs Avsar, for instance, about her costs incurred whilst acting in a capacity of administratrix for her mother, while her mother was incapacitated but still alive (pre 1996), and in the Family Court proceedings she brought against Mr Cowan, before he died in 2005.
None of these arguments, with respect to Mrs Avsar, who acts without any legal representation, provide me with any sufficient legal basis to even ponder that she might ever succeed at a future trial by showing an interest personally in some part of Lot 111. This is my assessment either by reference to the asserted half of a joint tenancy interest her late mother once held, or in Lot 111 after it passed by survivorship in 1996 to Mr Cowan, upon Mrs Cowan's death.
The underlying merits towards the identification of some legal or equitable interest in Lot 111 by Mrs Avsar appear to have been overwhelmed by the tsunami of litigation in the Family Court and the District Court and other places. But none has ever been successfully resolved upon the merits, as I see it, in Mrs Avsar's favour. Yet she asserts defiantly that she holds some interest in Lot 111 and should be heard once again.
On my assessment, Mrs Avsar holds no arguable interest in Lot 111 to sustain any relief from this Court. But even if she could winkle out some argument as to an interest in Lot 111 in Mrs Avsar sufficient to argue for an injunction, and without an undertaking as to damages, there is still the balance of convenience to consider.
Mrs Binning, as first defendant, is now aged in her 80s. She is the sole beneficiary of her late brother's estate. She is the holder of a valid grant of probate in respect of his estate.
Mrs Binning would appear to have been held out for many years by Mrs Avsar's plethora of litigation from realising any benefit in Lot 111.
There is now evidence that there is a willing purchaser who has agreed to purchase Lot 111, subject to receiving a clean title at settlement. There appears to have been previous interest from another purchaser, but who was effectively scared off, not surprisingly, by the caveats I have mentioned. All three caveats have now suffered their lapse, after Registrar's notices under the TLA.
There presents now, it seems, another opportunity for Lot 111 to be disposed of by Mrs Binning to a fresh prospective purchaser.
I can see no basis, weighing the balance of convenience, to interrupt any potential sale, particularly where there is an aging vendor already exposed to much meritless and expensive litigation for so long - in respect of many actions no doubt accruing ongoing legal costs over time - only part of which costs have been met by Mrs Avsar.
Here the balance of convenience, in my view, strongly favours Mrs Binning not being interrupted in terms of her sale and settlement of Lot 111, particularly in circumstances where there is no legitimate identifiable, arguable interest in land the law can recognise in Lot 111 on the part of Mrs Avsar.
That position is supported by the absence of any undertaking as to damages.
Furthermore, there presents what I assess to be a very concerning abuse of process by a repeated lodgment of Avsar family caveats, most recently by Yasmin Avsar, to circumvent the lapse of Mrs Avsar's caveat on 17 September 2012, and thereby to freeze dealings with Lot 111 and get around s 138D(1) of the TLA. I have no doubt Mrs Avsar is behind all this. On that basis as well, the application for injunctive relief is refused. The court will not assist an abuse of process.
The existence of Yasmin's caveat was mentioned to me on 15 January 2013, but not its content at that time: see ts 11, 12 and 13. My attention was quite properly drawn to that by Ms Hill, counsel for Mrs Binning. What was said by me at the time in 2013 was in reference to the Family Court proceedings being finished, the District Court proceedings being finished and Mrs Avsar not ever being appointed as the administratrix of the late Mrs Cowan. I then observed:
So that's a fairly fundamental issue in terms of the standing of Mrs Avsar. I think I can indicate that on the material before me today, there's no basis for me to grant Mrs Avsar leave under section 138 as she seeks, section 138D(1)(e), in terms of filing new material. From a practical point of view, however [Ms Hill as counsel for the respondent says] there's another caveat of Yasmin Avsar that effectively stops dealings on the land.
The subject was returned to in passing at ts 13. It was clarified that Mrs Binning had not instructed her solicitor that Landgate had told her the caveat had been accepted. There was a lack of certainty in terms of the status of Yasmin's caveat at that point in time.
Full details now having been provided of this third caveat lodged by Yasmin, it is apparent that nothing has emerged to support any arguable basis for an interest in Lot 111 by Yasmin herself. The broad assertion, seen both on Yasmin's caveat and her accompanying statutory declaration as to her holding some equitable interest or beneficial interest in Lot 111, effectively contained nothing of any substance - although it was enough, apparently, for Landgate to ultimately accept Yasmin's caveat in January 2013. It has now lapsed in 2014.

My scrutiny today of Yasmin's documentation concerning her caveat shows it as having been filed effectively as a mechanism to get around the s 138D(1) difficulty faced by Mrs Avsar in terms of her being then inhibited from filing any further caveats.
I dismiss the application for an interlocutory injunction. In addition, this entire action will also now be dismissed as an abuse of process.
Mrs Avsar shall pay the first defendant's costs of her failed application and, as well, of her now dismissed action, to be taxed.