Avsar v Manonai

[2008] WASC 202

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   AVSAR -v- MANONAI [2008] WASC 202

CORAM:   TEMPLEMAN J

HEARD:   ON THE PAPERS

DELIVERED          :   18 SEPTEMBER 2008

FILE NO/S:   CIV 2165 of 2005

BETWEEN:   SEAN AVSAR

Plaintiff

AND

TARINEE MANONAI
Defendant

Catchwords:

Real property - Extension of caveat - Insufficient evidence claim has substance

Legislation:

Nil

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Plaintiff:     Not applicable

Defendant:     Not applicable

Solicitors:

Plaintiff:     In person

Defendant:     Leask & Co

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

Nil

1. TEMPLEMAN J:  Yasmin Avsar applies ex parte by chamber summons dated 10 September 2008 for leave to be joined as a party to the originating summons issued by Sean Avsar as plaintiff, acting by Mrs Jennifer Patricia Avsar as his guardian, and to extend the operation of caveat number K634027 lodged at Landgate on the title to the property at 61 Gilbertson Road, Kardinya.  The registered proprietor of the property is Tarinee Manonai, the defendant.  The caveat is due to lapse on 23 September 2008.

2. Ms Avsar requests in a letter dated 12 September 2008 addressed to the [Principal] Registrar that the application be dealt with urgently and on the papers.

3. The application was brought to my attention today, 18 September 2008.

4. Under s 138C of the Transfer of Land Act 1893 (WA), the court may make an order extending a caveat

   if satisfied that the caveator's claim has or may have substance.

5. In order to demonstrate that a case has or may have substance, it is necessary for the caveator to support the application by an affidavit containing the relevant evidence.

6. In the present case, the application is supported by an affidavit sworn by Ms Avsar on 11 September 2008.  In par 7 of the affidavit, Ms Avsar refers to an opinion expressed by a forensic accountant that:

   Tarinee Manonai was not in a financial position to purchase the property situated at 61 Gilbertson Road, Kardinya in 1998.  Furthermore the documents indicate that she was not in a financial position to service the loan.

7. The accountant to whom Ms Avsar refers, appears to be Simon Morrice Williams who swore an affidavit on 27 April 2006.  He said he had been retained by the plaintiff's representative, Mrs Avsar, to prepare a report in relation to the source of the funds used to purchase the property at 61 Gilbertson Road.  The affidavit was filed in support of the originating summons.

8. Mr Williams said he had perused all the documents made available to him by Mrs Avsar and that they indicated that the defendant was not in a financial position to purchase the property or to service the loan (unspecified).

9. Mrs Avsar filed an affidavit in support of Sean Avsar's originating summons in which she said she had in her possession 'all documents, instruments, papers and financial statements' which, with the assistance of a forensic accountant, would be able to assist the court to verify the true ownership of the Gilbertson Road property.

10. That vague evidence, consisting only of assertions, does not satisfy me that Ms Avsar's claim to a caveatable interest in the property has or may have substance.  I therefore decline to extend the caveat or to join Ms Avsar as a plaintiff in Sean Avsar's originating summons.

11. The chamber summons dated 10 September 2008 will be dismissed.