Bashford v Bashford

Case [2008] WASC 138


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   BASHFORD -v- BASHFORD [2008] WASC 138

CORAM:   BEECH J

HEARD:   2 JULY 2008

DELIVERED          :   15 JULY 2008

FILE NO/S:   CIV 1197 of 2008

BETWEEN:   ALLEN JAMES BASHFORD

Plaintiff

AND

ROY BASHFORD
DULCIE JEAN MOORE BASHFORD
First Defendants

THE REGISTRAR OF TITLES
Second Defendant

Catchwords:

Conveyancing - Real property - Caveats - Application to extend operation of caveat - Whether plaintiff has established a serious issue to be tried as to caveatable interest - Balance of convenience - Turns on own facts

Legislation:

Transfer of Land Act 1983 (WA) s 138C

Result:

Caveat extended

Category:    B

Representation:

Counsel:

Plaintiff:     Mr T Darbyshire

First Defendants            :     MR P J Hannan

Second Defendant         :     No appearance

Solicitors:

Plaintiff:     Kott Gunning

First Defendants            :     Chris Baker & Associates

Second Defendant         :     No appearance

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

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

Baumgartner v Baumgartner (1987) 164 CLR 137

Benson v Benson [2008] WASC 13

Boni v Kingsoak Pty Ltd [2007] WASC 174

Brogue Tableau Pty Ltd v Binningup Nominees Pty Ltd [2007] WASCA 179; (2007) 35 WAR 27

Castlemaine Toohey's Ltd v State of South Australia (1986) 161 CLR 148

Cruz v Osborne [1999] WASC 8

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

Devere Holdings Pty Ltd v Verge [2006] WASC 297

Eng Mee Yong v Letchumanan [1980] AC 331

J and H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546

Kerabee Park Pty Ltd v Daley [1978] 2 NSWLR 222

Kingstone Constructions Pty Ltd v Crispel Pty Ltd (1991) 5 BPR 11987

Kuper v Keywest Constructions Pty Ltd (1990) 3 WAR 419

Lee v Mavaddat [2007] WASC 18

Leros Pty Ltd v Terara Pty Ltd (1991) 174 CLR 407

Lydon v Ryding [2002] WASC 308

Midland Brick Company Pty Ltd v Welsh [2006] WASC 122; (2006) 32 WAR 287

Muschinski v Dodds (1985) 160 CLR 583

Powell v In De Braekt [2006] WASC 264

Professional Services of Australia Pty Ltd v Mila Properties Pty Ltd [2004] WASC 30

Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466

Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387

BEECH J: 

Introduction

  1. The plaintiff applies for an order extending the operation of a caveat over property owned by the first defendants.

  2. The plaintiff's application was commenced by originating summons dated 29 February 2008.

  3. On 29 February 2008, Le Miere J made orders which included an order extending the operation of the caveat until 10 March 2008.  On 10 March 2008 his Honour made an order extending the operation of the caveat to 7 April 2008.  Thereafter, orders were made by consent extending the operation of the caveat until the hearing of the plaintiff's application.

  4. I will begin by outlining the facts established by the affidavits which have been filed by the parties.  Secondly, I will outline the principles relevant…

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AGLC
Bashford v Bashford [2008] WASC 138
Case
[2008] WASC 138
Decision Date

CaseChat Overview and Summary

Bashford v Bashford was a proceeding in the Supreme Court of Western Australia concerning a dispute over the validity of a caveat lodged over a parcel of land. The plaintiff, Bashford, sought an extension of the operation of a caveat that had been lodged by the defendant, also Bashford, over a property. The court was tasked with determining whether the plaintiff had established a serious issue to be tried regarding the existence of a caveatable interest and whether the balance of convenience favoured the extension of the caveat.

The primary legal issues before the court were whether the plaintiff had demonstrated a serious question to be tried regarding the existence of a caveatable interest in the land and whether the balance of convenience supported the extension of the caveat. The court had to consider whether the plaintiff's claim had substance and whether there was a genuine proprietary interest in the land that warranted the protection of a caveat.

The court held that a caveatable interest must be a proprietary interest in land, as established in Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd. The court noted that on an application for an extension of a caveat, the onus is on the caveator to show that there is a serious question to be tried regarding the existence of such an interest. The court also recognised that the balance of convenience is a factor to be considered but emphasised that the primary purpose of a caveat is to protect a proprietary interest. The court found that the plaintiff had demonstrated an arguable case regarding the existence of a caveatable interest, and therefore, the balance of convenience favoured extending the operation of the caveat. The court also noted that while there was limited power to amend the terms of a caveat, it could not alter the interest claimed.

In conclusion, the court granted the plaintiff's application to extend the operation of the caveat, finding that there was a serious question to be tried regarding the existence of a caveatable interest and that the balance of convenience favoured the extension. The court's decision underscored the importance of demonstrating a genuine proprietary interest in land when seeking to protect it through a caveat.

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

Section 137 of the Transfer of Land Act 1893 (WA) enables a person who claims 'any estate or interest' in land to lodge a caveat. By its nature, a caveatable interest must be a proprietary interest in land: Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42, 50. A caveat is a form of statutory injunction preventing registration of a dealing against land until the caveator has been given a reasonable opportunity to justify the caveat by pursuing such remedies as he or she may have: J and H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546, 552, 558; Custom Credit (44 ‑ 45); Brogue Tableau Pty Ltd v Binningup Nominees Pty Ltd [2007] WASCA 179; (2007) 35 WAR 27 [68]. Section 138C(2) of the Transfer of Land Act is in the following terms.On the hearing of an application under subsection (1), the Supreme Court ‑ (a)if satisfied that the caveator’s claim has or may have substance -(i)may make an order extending the operation of the caveat for such period as is specified in the order;(ii)may make an order extending the operation of the caveat until the further order of the court; or(iii)may make such other orders as it thinks fit concerning the caveat or the land in respect of which the caveat was lodged;(b)if not satisfied that the caveator’s claim has or may have substance, shall dismiss the application; and(c)may make such ancillary orders in relation to the application as it thinks fit. It can be seen that the power of the court to make orders in favour of a caveator arises only if the court is satisfied that the caveator's claim 'has or may have substance'. The 'caveator's claim' refers to the claim by the caveator of the estate or interest that is claimed in the caveat: Professional Services of Australia Pty Ltd v Mila Properties Pty Ltd [2004] WASC 30 [17]. On an application for an extension, the onus is on the caveator to demonstrate that there is a serious question to be tried as to whether a caveatable interest exists: Custom Credit (48); Jandric v Jandric [1999] WASC 22 [5]. In an application for an extension of caveat it is not appropriate to attempt to resolve conflicts of evidence on affidavit: Porter v McDonald [1984] WAR 271, 276. The caveat will not be removed unless the claim to an estate or interest in the land appears to be without foundation: Porter v McDonald (276); Custom Credit (48). The balance of convenience is a factor to be considered in an application to extend the operation of a caveat. However, interlocutory removal of a caveat will be unusual where an arguable case as to the existence of a caveatable interest has been demonstrated. That is because the purpose of a caveat is the protection of a proprietary interest. Removal of the caveat will, in many cases, have the effect of destroying the benefit of the proprietary interest claimed in the caveat: Custom Credit (50). On an application to extend a caveat there is a limited power to allow the terms of the caveat to be amended. Amendment may be permitted so as to enable the caveat to express better or more fully the interest which is claimed in the caveat. However, amendment is not permitted so as to alter the interest which is claimed and therefore claim a different interest: Professional Services of Australia Pty Ltd v Mila Properties Pty Ltd [17]; Midland Brick Company Pty Ltd v Welsh [2006] WASC 122; (2006) 32 WAR 287 [397] ‑ [399]; Devere Holdings Pty Ltd v Verge [2006] WASC 297 [22]; Benson v Benson [2008] WASC 13 [31] ‑ [33].