Barrett v King

Case [2024] WASCA 169


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…

Continue reading Barrett v King

Sign in free to access the full text

Details
AGLC
Barrett v King [2024] WASCA 169
Case
[2024] WASCA 169
Decision Date

CaseChat Overview and Summary

In Barrett v King, the appeal was against an order extending the operation of a caveat over a parcel of land in Perth. The appellant, Mr Barrett, was the registered proprietor of the property, and the respondent, Ms King, had lodged a caveat over the property. The dispute arose after the Registrar of Titles issued a 21-day notice to the caveator under s 138B(1) of the Transfer of Land Act 1994 (WA), prompting the caveator to apply to the Supreme Court for an extension of the caveat's operation under s 138C(1). The Supreme Court granted an extension until further order, and the appellant appealed this decision.

The primary legal issue was whether leave to appeal was required and if the order was interlocutory or final in nature, and whether it constituted an injunction. The court had to determine if the order was interlocutory, which would mean leave to appeal was required, or if it was a final order that could be appealed without such leave. Additionally, the court considered whether the order was an injunction, which would also impact the necessity of leave to appeal. The court was guided by previous case law, particularly Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd and Australian Broadcasting Corporation v O'Neill, which provided the framework for assessing whether the caveator's claim had or may have substance.

The court found that the order was interlocutory in nature, as it was expressed to be 'until further order', which indicated it was not a final determination of the merits of the caveator's claim. The court held that leave to appeal was required since the order was interlocutory and not an injunction. The appeal was dismissed because the appellant did not demonstrate substantial injustice if the order was left unreversed. The court emphasised that the principles applicable to a caveat removal application also applied to an application to extend the operation of a caveat. The court concluded that the principles set out in Perron Investments Pty Ltd v Tim Davies Landscaping Pty Ltd were applicable, reinforcing that a serious question to be tried must be shown, involving 'a sufficient likelihood of success to justify in the circumstances the preservation of the status quo' pending trial.

The final order was that the application for leave to appeal was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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)). 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)). 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].