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
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- Barrett v King [2024] WASCA 169
- Case
- [2024] WASCA 169
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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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].