Barrett v King

Case •

[2024] WASCA 169

•

30 JANUARY 2025

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   BARRETT -v- KING [2024] WASCA 169

CORAM:   BUSS P

VAUGHAN JA

TOTTLE J

HEARD:   19 JUNE 2024

DELIVERED          :   19 JUNE 2024

PUBLISHED           :   30 JANUARY 2025

FILE NO/S:   CACV 85 of 2023

BETWEEN:   OANA ANCUTA BARRETT

First Appellant

GARETH JOHN BARRETT

Second Appellant

AND

MARGOT LOUISE KING

First Respondent

FRANCO FORTIS

Second Respondent

THE REGISTRAR OF TITLES

Third Respondent

ON APPEAL FROM:

Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA

Coram:   ARCHER J

Citation: KING -v- BARRETT [2023] WASC 234

File Number            :   CIV 1432 of 2023


Catchwords:

Appeal - Appeal from order extending the operation of a caveat - Whether leave to appeal required - Whether order interlocutory or final in nature - Whether order an injunction - Order interlocutory in nature - Order not an injunction - Leave to appeal required

Appeal - Appeal from order extending the operation of a caveat - Where order expressed to be 'until further order' - No substantial injustice if order left unreversed demonstrated by appellant - Application for leave to appeal dismissed

Legislation:

Transfer of Land Act 1893 (WA)
Supreme Court Act 1935 (WA)

Result:

Application for leave to appeal dismissed
Appeal dismissed

Category:    B

Representation:

Counsel:

First Appellant : P Ward
Second Appellant : P Ward
First Respondent : R R Joseph
Second Respondent : R R Joseph
Third Respondent : No appearance

Solicitors:

First Appellant : Williams + Hughes
Second Appellant : Williams + Hughes
First Respondent : Siera Legal Pty Ltd
Second Respondent : Siera Legal Pty Ltd
Third Respondent : No appearance

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

A Hudson Pty Ltd v Legal & General Life of Australia Ltd (1985) 1 NSWLR 701

Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57

Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225

Carr v Finance Corporation of Australia Ltd [1981] HCA 20; (1981) 147 CLR 246

Chang v Legal Profession Complaints Committee [No 2] [2020] WASCA 208; (2020) 56 WAR 263

Clough Ltd v Forge Group Ltd (in liq) (receivers & managers appointed) [2022] WASCA 179

CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33; (1997) 189 CLR 345

Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42

Eaton Developments Pty Ltd v NTC Pty Ltd (1998) 19 WAR 552

Ex parte Bucknell [1936] HCA 67; (1936) 56 CLR 221

Ex parte Kojak Constructions Pty Ltd [1981] Qd R 339

Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423

Incentive Programmes Pty Ltd (in liq) v Ridge [1984] QSCFC 128

J & H Just (Holdings) Pty Ltd v Bank of New South Wales [1971] HCA 57; (1971) 125 CLR 546

Jandric v Jandric [1999] WASC 22

King v Barrett [2023] WASC 234

Leros Pty Ltd v Terara Pty Ltd [1992] HCA 22; (1992) 174 CLR 407

Licul v Corney [1976] HCA 6; (1976) 180 CLR 213

Milglade Pty Ltd v Harrison [2008] QSC 359

Mineralogy Pty Ltd v CITIC Ltd [2024] WASCA 168

NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107

Perron Investments Pty Ltd v Tim Davies Landscaping Pty Ltd [2009] WASCA 171

Re GGA Lifestyle Pty Ltd (administrators appointed); Ex parte Woodhouse [2019] WASC 167

Re Luck [2003] HCA 70; (2003) 78 ALJR 177

Rouse v IOOF Australia (No 2) [1999] SASC 205

Sanofi v Parke Davis Pty Ltd (No 1) [1982] HCA 9; (1982) 149 CLR 147

Sommerville Kalgoorlie Pty Ltd v Gullan Pty Ltd [2023] WASCA 45

Trkulja v Efron & Associates [2014] VSCA 76

Zaghloul v Bayly [2023] WASCA 64

REASONS OF THE COURT:

Overview

  1. The appellants purported to appeal as of right from an order made by a judge of this court in the General Division (Archer J) extending the operation of a caveat pursuant to s 138C(2) of the Transfer of Land Act 1893 (WA).

  2. The first and second respondents (who we will refer to as the 'respondents' as the third respondent took no part in the appeal) said that the purported appeal was incompetent as it required leave under s 60(1)(f) of the Supreme Court Act 1935 (WA). The appellants contended that leave was not required. First, the appellants said that the primary orders were not an interlocutory order or judgment. Second, if the primary orders were an interlocutory order or judgment, the appellants said that the exception in s 60(1)(f)(ii) applied - the appellants said that the primary orders constituted the grant of an injunction. In the alternative, if leave was required, the appellants sought leave to appeal.

  3. At the appeal hearing, the court directed that it would first hear argument on the question of whether leave to appeal was required; and, if so, whether there should be leave to appeal.  On the second issue the court was content to proceed on the basis that the primary decision was attended by sufficient doubt to justify leave to appeal.[1]  After hearing from counsel for the appellants the court was satisfied that the primary orders were an interlocutory order and that leave to appeal was required.  The court was also satisfied that leave to appeal should be refused.  It followed that the appeal should be dismissed.  Orders were made accordingly.  The court stated that it would publish written reasons for those orders at a later date.

    [1] Appeal ts 19 - 20.

  4. These are our reasons for the orders of the court refusing leave to appeal and dismissing the appeal.

Background

  1. The primary judge published written reasons for the order extending the operation of the caveat:  King v Barrett.[2]

    [2] King v Barrett [2023] WASC 234 (primary reasons).

  2. Those primary reasons provide a detailed account of the parties' dispute.  In short, the respondents entered into an agreement to purchase land from the appellants.  The contract provided for the construction of a residence on the land before settlement.  Before termination of the contract, by the respondents, the respondents paid various amounts to a project manager for approved variations in relation to the construction.  While the contract remained on foot the respondents lodged a subject to claim caveat in relation to the land.  The respondents claimed an estate or interest in the land as equitable chargees (although, to our mind, the respondents are more correctly described as putative equitable lienees as the claimed estate or interest arises by operation of law rather than agreement:  Re GGA Lifestyle Pty Ltd (administrators appointed); Ex parte Woodhouse).[3]  The claimed estate or interest was said to secure an amount of $90,873.79 being the amount of the variation payments.

    [3] Re GGA Lifestyle Pty Ltd (administrators appointed); Ex parte Woodhouse [2019] WASC 167 [34].

  3. The appellants caused the Registrar of Titles to issue a 21-day notice under s 138B of the Transfer of Land Act. The respondents brought proceedings under s 138C of the Act for an order extending the operation of the caveat. The primary judge found that:

    1.There was a serious question to be tried as to whether the respondents' claim has substance [68].

    2.The balance of convenience favoured the extension of the operation of the caveat [95].

  4. In relation to the balance of convenience, the primary judge made an express finding, unchallenged by any ground of appeal, that there was no probative evidence of any substantial prejudice to the appellants arising from the extended operation of the caveat [95].

  5. The primary judge made orders extending the operation of the caveat in the following terms:

    1.The caveat P479362 (Caveat) be amended so that the estate or interest claimed is in the following terms:

    The nature of the estate or interest claimed by the applicants [ie the respondents to the appeal] is as equitable chargee, to the extent of the interest arising from their payments for agreed variations to the development on the land in the total sum of $90,873.79.

    2.Subject to paragraph 3 below, the operation of the Caveat be extended until further order in the proceedings referred to in paragraph 3.

    3.It is a condition subsequent to the continuation of the order in paragraph 2 that, within 4 weeks, the applicants commence proceedings in this court by writ of summons for the purpose of determining the applicants' claims to an interest in the property in respect of which the Caveat has been lodged.

    4.The first respondents [ie the appellants in the appeal] are to pay the applicants' costs to be taxed if not agreed.

  6. Three features of the primary orders should be highlighted.  First, the orders contemplated the respondents commencing proceedings for the purpose of determining the merits of the respondents' claim to hold an interest in the land (par 3).  Second, the extended operation of the caveat, as provided for by the orders, was subject to the commencement of those contemplated proceedings (pars 2 and 3).  Third, and critically for present purposes, the extended operation of the caveat was only until 'further order' in the contemplated proceedings (par 2).

  7. The respondents filed an undertaking as to damages in support of their application to extend the operation of the caveat. The primary judge recorded that the undertaking as to damages had been filed [12]. The primary orders did not state that they were conditioned on the proffering and acceptance of the undertaking as to damages. It is plain, however, that in recording the fact of the undertaking as to damages it was intended by the primary judge that her orders were conditioned by the proffering and acceptance of the undertaking. Such an intention is consistent with the usual practice of the court: Consolidated Practice Directions PD 4.3.4 pars 1 - 2.

Were the primary orders an interlocutory order?

  1. The right to appeal from an order or judgment of a judge in the General Division as conferred by s 58(1)(a) and (b) of the Supreme Court Act is subject to the restrictions in s 60 of the Act. By s 60(1)(f) no appeal lies from any interlocutory order or interlocutory judgment without leave. There are exceptions to the requirement for leave to appeal. One of those exceptions is where an injunction or the appointment of a receiver is granted or refused (s 60(1)(f)(ii)).

  2. The statutory restriction on appeals from an interlocutory order or judgment recognises that the due administration of justice is not served by appellate review of interlocutory orders or judgments as a matter of course:  Mineralogy Pty Ltd v CITIC Ltd.[4]

    [4] Mineralogy Pty Ltd v CITIC Ltd [2024] WASCA 168 [57] - [58].

  3. The distinction between final and interlocutory orders and judgments is not always easy to draw:  Licul v Corney.[5]  The characterisation of an order or judgment as final or interlocutory depends on the nature of the order, not on the nature of the application made to the court:  Ex parte Bucknell.[6]  Whether an order or a judgment is final, as distinct from interlocutory, depends on whether the order or judgment finally determines the rights of the parties in a principal cause pending between them:  Hall v Nominal Defendant;[7] Licul v Corney (225); Carr v Finance Corporation of Australia Ltd;[8] Sanofi v Parke Davis Pty Ltd (No 1);[9] Bienstein v Bienstein;[10] and Re Luck.[11]  The test requires the court to have regard to the legal rather than the practical effect of the order or judgment:  Carr v Finance Corporation of Australia Ltd (248); and Re Luck [4]. Thus the question is whether the order or judgment finally determines, in a legal sense, the rights of the parties in issue in a principal proceeding between them.

    [5] Licul v Corney [1976] HCA 6; (1976) 180 CLR 213, 225.

    [6] Ex parte Bucknell [1936] HCA 67; (1936) 56 CLR 221, 225.

    [7] Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423, 439 - 440, 443 - 444.

    [8] Carr v Finance Corporation of Australia Ltd [1981] HCA 20; (1981) 147 CLR 246, 248, 253 - 254.

    [9] Sanofi v Parke Davis Pty Ltd (No 1) [1982] HCA 9; (1982) 149 CLR 147, 152.

    [10] Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 [25].

    [11] Re Luck [2003] HCA 70; (2003) 78 ALJR 177 [4].

  4. It is never enough to ask, 'does the order finally determine the actual application or matter out of which it arises'?  Subject to appeal, every order does that (unless the order is expressly declared to be subject to variation):  Hall v Nominal Defendant (443).

  5. Where there is a principal cause pending between the parties, the application of the test requires the court to determine two things.  First, what, for the purpose of the particular proceedings, are the 'rights of the parties'.  Second, whether the order or judgment in question 'finally determines' those rights.  Ordinarily, the relevant rights are the rights that have been propounded for decision in the particular proceedings.  In considering whether the order or judgment determines those rights the court is concerned with legal effect.  Legal effect is not to be determined merely by looking at the form of the order or judgment.  'Legal effect' for this purpose is what the order or judgment does in law.  See A Hudson Pty Ltd v Legal & General Life of Australia Ltd.[12]

    [12] A Hudson Pty Ltd v Legal & General Life of Australia Ltd (1985) 1 NSWLR 701, 715 - 717.

  6. Counsel for the appellants accepted the applicable principles.[13]  Counsel argued, however, that the primary orders had final effect unless and until the contemplated further proceedings were commenced.  Counsel said that the order for extension was operating of its own force; it was, in that relevant sense, final.[14]  Counsel for the appellants also relied on the decision of Dunn J in the Supreme Court of Queensland in Ex parte Kojak Constructions Pty Ltd[15] as was endorsed by the Full Court of the Supreme Court of Queensland in Incentive Programmes Pty Ltd (in liq) v Ridge.[16]  In written submissions counsel for the appellants submitted that these authorities established that a decision to extend a caveat will be final where no substantive proceeding is on foot and interlocutory where there is a substantive proceeding on foot.[17]

    [13] Appeal ts 6 - 7.

    [14] Appeal ts 4 - 5, 8.  See also appellants' reply submissions par 6 WAB 21 - 22.

    [15] Ex parte Kojak Constructions Pty Ltd [1981] Qd R 339, 340.

    [16] Incentive Programmes Pty Ltd (in liq) v Ridge [1984] QSCFC 128, 5.

    [17] Appellants' reply submissions par 4 WAB 21.

  7. In substance, counsel for the appellants contended that the primary orders were final as to the question of whether the respondents were entitled to maintain their caveat pending resolution of whether the respondents are entitled to the claimed interest in the land.[18]

    [18] Appeal ts 5; appellants' reply submissions par 7 WAB 22.

  8. In accordance with the authorities it will be necessary to return to the legal effect of the primary orders. It is useful, however, to put the primary orders in their proper context. That context is that the primary orders concerned the resolution of an application pursuant to s 138C of the Transfer of Land Act to extend the operation of a caveat. Something more should be said about the regime provided for under s 138C, and pt V of the Act more generally, before turning to the legal effect of the primary orders.

  9. A person claiming an estate or interest in land may lodge a caveat with the Registrar of Titles forbidding the registration of any person as transferee or proprietor of and of any instrument affecting the claimed estate or interest (s 137(1)).  As will be seen, there are mechanisms whereby a registered proprietor may bring about removal of the caveat; and, in any case, a caveat will lapse on the expiration of 14 days after notice is served on the caveator that a registered proprietor has applied for the registration of a transfer or other dealing (s 138(3)).  However, subject to exceptions that are presently immaterial, while a caveat remains in force prohibiting any registration or dealing, the Registrar must not enter any change in the proprietorship of or any transfer or other instrument purporting to transfer or otherwise deal with or affect the estate or interest in respect of which the caveat is lodged (s 139(1)).

  10. Accordingly, the purpose of a caveat is to act as a statutory injunction to the Registrar of Titles to prevent registration of dealings forbidden by the caveat until notice is given to the caveator - this enables the caveator to pursue such remedies as he or she may have against the person lodging the dealing for registration:  J & H Just (Holdings) Pty Ltd v Bank of New South Wales;[19] Leros Pty Ltd v Terara Pty Ltd.[20]  In short, a caveat prevents the registration of dealings which would defeat the claimed estate or interest until the parties' respective rights are determined:  Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd.[21]

    [19] J & H Just (Holdings) Pty Ltd v Bank of New South Wales [1971] HCA 57; (1971) 125 CLR 546, 552, 558.

    [20] Leros Pty Ltd v Terara Pty Ltd [1992] HCA 22; (1992) 174 CLR 407, 419.

    [21] Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42, 50.

  11. In addition to bringing about a lapse of the caveat pursuant to s 138(3) of the Transfer of Land Act, there are two main ways in which a registered proprietor of land may seek removal of a caveat:

    1.First, the registered proprietor may summon the caveator to attend before the Supreme Court to show cause why the caveat should not be removed (s 138(2)).  On such an application the question for determination is whether the caveator can demonstrate that it may have a proprietary interest in the land which is capable of supporting the caveat.  The onus lies on the caveator to demonstrate that there is a valid caveatable interest - in the sense that there is a serious question to be tried on the issue of whether there is such a proprietary interest - and that the balance of convenience favours the retention of the caveat until the issue is resolved at trial:  Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (48 - 50, 62).

    2.Second, in the case of caveats other than those listed in s 138A, the registered proprietor may apply to the Registrar of Titles to issue a 21-day notice to the caveator (s 138B).  The effect of such a notice is that, once served, the caveat will lapse 21 days after the date of service unless:  (a) the caveator obtains an order from the Supreme Court extending the operation of the caveat and (b) the order is lodged with the Registrar (s 138B(2)).

  12. Where, in the second scenario, the Registrar of Titles issues a caveator with a 21-day notice under s 138B(1), the caveator may apply to the Supreme Court for an order extending the operation of the caveat (s 138C(1)). The court may make various orders, including an order extending the operation of the caveat for a specified period or until further order, 'if satisfied that the caveator's claim has or may have substance' (s 138C(2)(a)). However, if not satisfied that the caveator's claim has or may have substance, the court must dismiss the application (s 138C(2)(b)). The court may also make such ancillary orders in relation to the application as it thinks fit (s 138C(2)(c)).

  13. The principles applicable to a caveat removal application under s 138(2) of the Act also apply to an application to extend the operation of a caveat under s 138C of the Act: Perron Investments Pty Ltd v Tim Davies Landscaping Pty Ltd.[22]  See also Jandric v Jandric.[23]  In that respect, drawing upon what was said in Australian Broadcasting Corporation v O'Neill[24] as to the test of 'serious question to tried' in the context of an application for an interlocutory injunction, Newnes JA (Pullin JA agreeing) clarified in Perron Investments that in establishing for the purpose of an application under s 138C that a caveator's claim has or may have substance:

    [T]he existence of a serious question to be tried involves showing 'a sufficient likelihood of success to justify in the circumstances the preservation of the status quo' pending trial. 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 [42].

    [22] Perron Investments Pty Ltd v Tim Davies Landscaping Pty Ltd [2009] WASCA 171 [41].

    [23] Jandric v Jandric [1999] WASC 22 [15], [26].

    [24] Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 [65].

  1. If a caveator is able to demonstrate that its claim to an estate or interest in the land has or may have substance, and the balance of convenience favours the retention of the caveat, the ordinary course is for the caveat to remain and for the disputed question to be left for trial by writ of summons with pleadings.  That is what occurred in the present case.  Ordinarily, as in the present case, the order extending the operation of the caveat will be conditional on the caveator promptly commencing and prosecuting substantive proceedings by writ of summons for the purpose of determining the serious question to be tried which grounds the continued operation of the caveat.

  2. In this context it is unsurprising that, in this court, it has been assumed that an order extending the operation of a caveat under s 138C of the Transfer of Land Act is an interlocutory order and that leave to appeal is required to appeal from the order:  Perron Investments Pty Ltd v Tim Davies Landscaping Pty Ltd [1], [14], [20], [22], [58], [61]. Owen J reached the same conclusion sitting as a single judge dealing with interlocutory matters arising in various appeals in Eaton Developments Pty Ltd v NTC Pty Ltd.[25]

    [25] Eaton Developments Pty Ltd v NTC Pty Ltd (1998) 19 WAR 552, 553.

  3. In the present case the primary orders are interlocutory in nature.  That is obvious from the express terms of the orders.  The order extending the operation of the caveat is expressed to be 'until further order' in the further proceedings contemplated by par 3 of the primary orders.  Accordingly, the order extending the operation of the caveat may be varied or discharged by further order in the contemplated proceedings.  Moreover, properly understood, the primary orders did not finally determine the rights of the appellants and the respondents in a principal cause pending between them.

  4. Counsel for the appellants sought to counter the first point by insisting that the order for an extension of the caveat took effect without the commencement of the contemplated further proceedings.  That may be accepted.  But the primary orders clearly provided that the order extending the operation of the caveat was subject to the condition subsequent that, within 4 weeks, the respondents commence proceedings by writ for the purpose of determining the respondents' claim to an interest in the land as propounded by the caveat.  The order extending the operation of the caveat was ancillary to those contemplated proceedings.  In the event of non-compliance with the condition subsequent it was open to the appellants to apply in the primary proceedings to vary or discharge the order extending the operation of the caveat.  Accordingly, even though the primary orders had immediate effect, they were not final in nature.

  5. The second point is more fundamental.

  6. The appellants' contention that the primary orders were final in effect is premised on the proposition that the order extending the operation of the caveat finally determined whether the respondents were entitled to maintain their caveat pending the determination of the contemplated proceedings.  Implicit in that proposition is that there was a principal cause pending between the parties as to the right of the respondents to maintain their caveat.  That, in our opinion, mischaracterises the principal cause pending between the parties.  Moreover, the appellants' contention in this respect is essentially grounded in the fallacy that for an order to be final rather than interlocutory it is enough if the order finally determines the relevant application before the court.  That approach is incorrect in principle (see [15] above).

  7. The principal cause pending between the parties concerns the matter of substance that has led to the commencement of the proceedings.  In the present case the principal cause pending between the parties is, relevantly, whether the respondents have a proprietary interest in the land as claimed in the caveat.  In other words the relevant 'rights of the parties' for determination are concerned with the substantive issue of the respondents' claimed interest in the appellants' land - the respondents claiming that they hold such a right and that claimed right being disputed by the appellants.  In these circumstances the essential character of the issue determined by the primary orders was ancillary to the substantive contemplated proceedings to be commenced in accordance with par 3 of the orders.  As such the primary orders were interlocutory in character.

  8. Put simply, the primary orders did not finally determine the parties' respective rights concerning the estate or interest claimed in the land by the respondents in accordance with their caveat.  To the contrary, consistently with the court's usual approach when making an order extending the operation of a caveat when satisfied that the caveator's claim has or may have substance, the primary orders envisaged those rights being finally determined in the contemplated proceedings provided for in par 3 of the orders.  It follows that the primary orders were an interlocutory order.

  9. The appellants relied on Ex parte Kojak Constructions Pty Ltd and Incentive Programmes Pty Ltd (in liq) v Ridge as authority to the contrary of this conclusion.  Both of those cases were concerned with a different situation from the present case.  In both cases a question arose as to whether hearsay evidence could be admitted on an application for removal of a caveat.  The relevant rules of court allowed for the admission of hearsay evidence on an interlocutory application.  In Ex parte Kojak Constructions Pty Ltd Dunn J held that the proceedings were not interlocutory in nature and excluded the hearsay evidence (340).  Dunn J's reasoning was adopted by Andrews SPJ (Kelly J agreeing) in Incentive Programmes Pty Ltd (in liq) v Ridge (5).  However, that aspect of Incentive Programmes Pty Ltd (in liq) v Ridge is strictly obiter dicta insofar as Andrews SPJ considered that the evidence was not relevant in any event (5 - 6).

  10. Dunn J characterised the right in question as 'the right given by the statute to a claimant to take a step which will prevent dealings with land' (340). That is not the relevant right in issue in the principal cause pending between the parties in the present case. See [30] - [32] above. In any event there are a number of features which distinguish the present case from that considered by Dunn J in Ex parte Kojak Constructions Pty Ltd.  For that reason alone we would not apply the reasoning in Ex parte Kojak Constructions Pty Ltd to the present case.

  11. The distinguishing features are as follows.

  12. First, the application in Ex parte Kojak Constructions Pty Ltd was an application for removal of a caveat; it was equivalent to the form of application under s 138(2) of the Transfer of Land Act rather than the application under s 138C in the present case. The legal effect of the possible orders that might be made on the application before Dunn J were potentially different in character from the primary orders that were made in the present case; they included, for example, an order that the caveat be removed on the basis that as a matter of fact or law there was no caveatable interest. Indeed, the report in Ex parte Kojak Constructions Pty Ltd goes on to state that Dunn J dealt with the merits of the application and ordered that the caveat be removed.

  13. Second, Dunn J was concerned with a different characterisation exercise - his Honour was characterising the nature of the proceedings before him rather than the nature of an order as made.  We accept that Dunn J observed that an order may be final for one purpose and interlocutory for another (340).  But earlier his Honour identified that the question for determination was whether the application was interlocutory or final (339).  Also, in stating his conclusion, Dunn J said that the proceedings were not interlocutory in nature (340).  In any case Dunn J's statement as to the potential ambulatory nature of an order reflects the accepted understanding that an order may be final for one purpose (eg issue estoppel) but interlocutory for another (eg an appeal):  see eg Chang v Legal Profession Complaints Committee [No 2].[26]  The terms 'final' and 'interlocutory' mean different things in different contexts.  At most Dunn J's reasoning is applicable to characterising the nature of an application for removal of a caveat.

    [26] Chang v Legal Profession Complaints Committee [No 2] [2020] WASCA 208; (2020) 56 WAR 263 [203].

  14. Third, Dunn J considered that the proceedings before him might be described as a 'principal cause' because the caveat was 'not ancillary to any proceedings' (340).  That is not the present case.  For reasons already explained the issue determined by the primary orders was ancillary to the substantive contemplated proceedings to be commenced in accordance with par 3 of the orders.

  15. Neither Ex parte Kojak Constructions Pty Ltd nor Incentive Programmes Pty Ltd (in liq) v Ridge compel the conclusion that in the present case the primary orders were a final order.  That is all the more so where, by the express terms of par 2 of the orders, the order extending the operation of the caveat was only until further order in the contemplated proceedings to be commenced in accordance with par 3 of the orders.

  16. The primary orders were an interlocutory order. An appeal from the primary orders required leave to appeal unless one of the exceptions in s 60(1)(f) of the Supreme Court Act applied. In that respect the appellants relied on s 60(1)(f)(ii) of the Act.

Were the primary orders an 'injunction'?

  1. As a fallback the appellants contended that an order extending the operation of a caveat under s 138C of the Transfer of Land Act was an injunction for the purposes of s 60(1)(f)(ii) of the Supreme Court Act.

  2. Counsel for the appellants embraced those authorities which have described a caveat as a form of statutory injunction.  Counsel also referred to Rouse v IOOF Australia (No 2),[27] Trkulja v Efron & Associates[28] and Milglade Pty Ltd v Harrison.[29] Counsel otherwise said that regard should be had to the substance and effect of the orders made by the primary judge. This, in the appellants' counsel's submission, was to restrain the appellants from dealing with their land as they would otherwise lawfully be entitled to do. Thus, it was submitted, the order extending the operation of the caveat was in substance and effect an injunction for the purposes of s 60(1)(f)(ii).[30]

    [27] Rouse v IOOF Australia (No 2) [1999] SASC 205 [58] - [64].

    [28] Trkulja v Efron & Associates [2014] VSCA 76 [15].

    [29] Milglade Pty Ltd v Harrison [2008] QSC 359 [23].

    [30] Appeal ts 16 - 18.

  3. The cases relied on by the appellants do not take the point of statutory construction raised by this argument very far.

  4. We acknowledge that in Milglade Pty Ltd v Harrison Chesterman J observed that an order removing a caveat, or dismissing an application for the removal of a caveat, is indistinguishable from the grant or refusal of an interlocutory injunction [23]. That observation was made in the course of determining whether an order for removal of certain caveats was interlocutory or final. In that respect Chesterman J stated earlier that proceedings for the removal of caveats were conventionally dealt with by the application of principles applicable to the grant of interlocutory injunctions [23]. In the context in which it was made the statement relied on by the appellants is of no consequence for the question of statutory construction that arises as to the meaning of the term 'injunction' in s 60(1)(f)(ii) of the Supreme Court Act.  Chesterman J was doing no more than equating the legal effect of the various orders rather than saying that an order removing a caveat, or dismissing an application for the removal of a caveat, is the refusal or grant of an interlocutory injunction.

  5. In any event Milglade Pty Ltd v Harrison was not concerned with an order of the kind in the present case - Chesterman J's aphorism is not concerned with an order for the extension of a caveat subject to further order in other proceedings.

  6. Rouse v IOOF Australia (No 2) and Trkulja v Efron & Associates are even further removed from the present case.  Rouse v IOOF Australia (No 2) concerned whether an order for delivery up of certain documents was a mandatory injunction.  Lander J held it was not.  His Honour stated, correctly in our view, that there are many orders which are mandatory in nature and binding on a party which could not be said to be injunctions, and went on to give examples of such orders [57] - [59].  By contrast Trkulja v Efron & Associates was a freezing order case. The Victorian Court of Appeal considered that the reference to 'injunction' in s 17A(4)(b)(ii) of the Supreme Court Act 1986 (Vic), which was in similar terms and had a similar purpose to the exception in s 60(1)(f)(ii) of the Western Australian Act, included a freezing order or an asset preservation order [15]. The court stated:

    [I]f one considers the substance of the matter, an injunction is an order in which a court enjoins or directs conduct. A freezing order or an asset preservation order characteristically enjoins or directs conduct [15].

  7. Trkulja v Efron & Associates does not assist the appellants. A freezing order is coercive and acts in personam, restraining the subject of the order from removing or dealing with his or her assets, thereby exposing the party restrained to potential penal consequences by way of committal and attachment for contempt if the order is contravened. That is not the case with an order for the extension of a caveat. An order for the extension of a caveat does not of itself restrain anyone or anything. The order simply has the legal consequence, by operation of s 138B(2) of the Transfer of Land Act, that the relevant caveat will not lapse if the order is lodged with the Registrar of Titles before the expiration of the 21 days.  Moreover, it is the caveat, rather than the order extending the operation of the caveat, that acts by way of statutory injunction directed to the Registrar.  In that respect the appellants' reliance on the conception of a statutory injunction is misdirected.  So too is the assertion that the primary orders restrained the appellants from dealing with their land.  The statutory prohibition effected by the caveat is directed to the Registrar rather than the appellants.

  8. While, for these reasons, we do not accept the appellants' arguments in support of the proposition that the primary orders were the grant of an injunction, it remains necessary to determine the scope of the exception in s 60(1)(f)(ii).

  9. The term 'injunction' is used in various provisions in the Supreme Court Act but is not defined in the Act. In addition to its use in s 60(1)(f)(ii) the term 'injunction' is used in s 24(5), s 25(9) and s 25(10).

  10. The term 'injunction' has been described as an order of the court, by way of a coercive or specific remedy, that stops a person from doing, or demands that a person do, a particular action:  LexisNexis Australian Legal Dictionary (2nd Edition) p 789.

  11. The authors of Words and Phrases Legally Defined (5th Edition) put it slightly differently, but to the same substantive effect:

    An injunction is a judicial remedy by which a person is ordered to refrain from doing or ordered to do a particular act or thing (Vol 1, p 1528).

  12. These descriptions of the term 'injunction' are accurate in a general sense, but they are not definitions.  The term 'injunction', in the language of equity, has no fixed definition.  Legal usage decides which court orders are to be identified as injunctions.  See CSR Ltd v Cigna Insurance Australia Ltd;[31] Meagher, Gummow & Lehane's Equity Doctrines & Remedies (5th ed, 2015) [21‑005].

    [31] CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33; (1997) 189 CLR 345, 390.

  13. The term 'injunction' in s 60(1)(f)(ii) of the Supreme Court Act refers to an order of the court which requires a person to refrain from doing or requires a person to do a particular act or thing.  The term also includes orders of the court which are identified by legal usage as injunctions.

  14. In the present case, the primary orders do not have the character of an 'injunction' within s 60(1)(f)(ii) as we have explained it.

  15. In substance and effect the primary orders are an order to extend the operation of the caveat. They are not an order, by way of a judicial remedy, that prohibits any person from doing, or commands any person to do, an act or thing under threat of penal consequences in the event of disobedience. The exception in s 60(1)(f)(ii) of the Supreme Court Act was not applicable.  The appellants' purported appeal was incompetent because it was purportedly commenced as of right without seeking leave to appeal.

Ought there be leave to appeal?

  1. The appellants sought leave to appeal if leave was required.

  2. Counsel for the appellants submitted that the appellants had suffered a grave curtailment of their rights.  The appellants had suffered prejudice, and there would be ongoing prejudice, as the appellants had not been able to deal with their land and would remain unable to deal with their land while the caveat remained lodged against the title to the land.  Moreover, if leave to appeal was required but leave was refused, the inability to appeal would mean that the appellants would suffer delay and incur additional costs in defending the respondents' claim to an interest in the land.[32]

    [32] Appeal ts 18 - 20, 24.

  3. The principles that apply in determining whether there should be leave to appeal are well-established.  A recent recitation of the applicable principles appears in NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd.[33]  See also Clough Ltd v Forge Group Ltd (in liq) (receivers & managers appointed).[34]  We adopt those principles but will not repeat them in full.  Leave may be granted whenever the interests of justice require it.  Often the interests of justice require consideration of two matters.  First, whether the decision was wrong or, at the least, attended with sufficient doubt to warrant its being reconsidered.  Second, whether substantial injustice would result if the decision is left unreversed, supposing the decision to be wrong.

    [33] NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107 [117] - [118].

    [34] Clough Ltd v Forge Group Ltd (in liq) (receivers & managers appointed) [2022] WASCA 179 [18] ‑ [23].

  4. In the present case, given the basis on which the appellants were asked to address the question of leave to appeal, it was to be assumed - favourably to the appellants - that the primary decision was attended with sufficient doubt to warrant its reconsideration on appeal.

  5. However, in our opinion, it was not the case that substantial injustice would result if the primary decision was left unreversed (assuming the decision to be wrong).  The following matters individually and collectively militated against that conclusion:

    1.First, the primary orders do not in their legal or practical operation finally determine the respondents' claim to an interest in the land.  Rather, that claim was to be determined, on its merits, in the contemplated proceedings to be commenced by the respondents in accordance with the order extending the operation of the caveat.

    2.Second, the order for the extension of the caveat was subject to the respondents' undertaking as to damages.  There was no suggestion that the undertaking as to damages was inadequate to protect the appellants from any prejudice suffered as a result of the continued operation of the caveat should it be determined that the respondents did not hold an interest in the land.  In any event, the primary judge made a finding, unchallenged in the appeal, that there was no probative evidence of any substantial prejudice to the appellants arising from the extended operation of the caveat.

    3.Third, it was open to the appellants, if they saw fit, to take practical steps to bring about immediate removal of the caveat by entering into an alternate security arrangement pending the determination of the contemplated proceedings.  Indeed, the appellants had taken such steps in the primary proceedings prior to the appeal hearing.[35]

    4.Fourth, on the appellants' case the proceedings commenced by the respondents were inadequate for the purpose of the order extending the operation of the caveat.[36]  This was because the relief claimed did not include declaratory relief to the effect that the respondents held an interest in the land in the form of an equitable lien.  However, as counsel for the appellant accepted, with respect correctly, if that was the case the condition subsequent in par 3 of the primary orders failed and it was open to the appellants to go back to the primary judge to obtain an order for removal of the caveat.[37]  Accordingly, on the appellants' case, there was a readily available procedural mechanism to bring about removal of the caveat without the necessity for appellate intervention.

    [35] Appeal ts 14 - 15.

    [36] Appeal ts 6, 10 - 13.

    [37] Appeal ts 13 - 14, 16, 22.

  1. As to the appellants' remaining arguments in support of leave to appeal, there was no substantial injustice in the appellants having to defend the respondents' claim to an interest in the land.  It is seldom that substantive injustice will arise from a claim being determined on its merits by a trial:  Sommerville Kalgoorlie Pty Ltd v Gullan Pty Ltd;[38] Zaghloul v Bayly.[39]  There was nothing of substance in the present case to take it outside the standard case.  The appellants will be afforded a full opportunity to establish their substantive rights as against the respondents at trial in the usual way.  The expressed concern as to delay was hollow in circumstances where no application had been made for an urgent appeal order and limited procedural steps had been taken in the proceedings contemplated by the caveat extension order.  Finally, as to costs, there was no basis in the evidence to believe that the respondents would be unable to meet the appellants' costs if the appellants were ultimately successful in the contemplated proceedings.

    [38] Sommerville Kalgoorlie Pty Ltd v Gullan Pty Ltd [2023] WASCA 45 [3], [56].

    [39] Zaghloul v Bayly [2023] WASCA 64 [52].

  2. In the circumstances the appellants failed to establish that it was in the interests of justice that there should be a grant of leave to appeal.  It followed that the application for leave to appeal had to be refused and the appeal was to be dismissed.  Costs followed the event.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CG

Associate to the Hon Justice Vaughan

30 JANUARY 2025


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Cases Cited

31

Statutory Material Cited

2

King v Barrett [2023] WASC 234
Re GGA Lifestyle Pty Ltd (Administrators Appointed); Ex Parte Woodhouse [2019] WASC 167
Mineralogy Pty Ltd v CITIC Limited [2024] WASCA 168