JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: BATESON -v- JONES [2013] WASC 8
CORAM: PRITCHARD J
HEARD: 19 DECEMBER 2012
DELIVERED : 19 DECEMBER 2012
PUBLISHED : 23 JANUARY 2013
FILE NO/S: CIV 3005 of 2012
BETWEEN: ALAN BATESON
Plaintiff
AND
SHARON LYNETTE JONES
First DefendantCOMMONWEALTH BANK OF AUSTRALIA
Second Defendant
Catchwords:
Extension of caveat - Whether caveat lodged as security for debt sufficient to give rise to equitable charge - Balance of convenience - Potential prejudice to purchasers and to other caveators if caveat extended - Bona fide exercise of mortgagee power of sale
Legislation:
Transfer of Land Act 1893 (WA), s 138C
Result:
Application for extension of caveat refused
Category: B
Representation:
Counsel:
Plaintiff: In person
First Defendant : In person
Second Defendant : Mr B C Smith
Solicitors:
Plaintiff: In person
First Defendant : In person
Second Defendant : Gadens Lawyers
Case(s) referred to in judgment(s):
Allen v Jambo Holdings Ltd [1980] 2 All ER 502.
Australian Broadcasting Corp v O'Neill [2006] HCA 46; (2006) 227 CLR 57.
Bashford v Bashford [2008] WASC 138.
Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42.
Custom Credit Corporation Ltd v Whitehall Holdings Pty Ltd (Unreported, WASC, Library No 920231, 7 April 1992).
Dominion Lifestyle Tower Apartment Pty Ltd v Global Capital Corporation Pty Ltd [2004] VSC 307.
Jandric v Jandric [1999] WASC 22.
Kuyper v Keywest Constructions Pty Ltd (1990) 3 WAR 419.
Murphy v Wright (1992) NSW ConvR 55‑652.
Navarac Pty Ltd v Moondancer Holdings Pty Ltd [2009] WASCA 95.
Perron Investments Pty Ltd v Tim Davies Landscaping Pty Ltd [2009] WASCA 171.
Troncone v Aliperti (1994) NSW ConvR 55‑703.
PRITCHARD J:
(This judgment was delivered extemporaneously on 19 December 2012 and has been edited from the transcript.)
Mr Bateson has applied by an originating summons dated 12 December 2012 for an order of the Court pursuant to s 138C of the Transfer of Land Act 1893 (WA) (the TLA), extending the operation of caveat number L712735 (the caveat) for 12 months. The caveat has been registered in respect of land jointly owned by Mr and Mrs Jones in Canning Vale contained in certificate of title 1767 folio 74 (the property).
According to the certificate of title, the caveat was registered on 19 August 2011. The caveat was registered after a number of other instruments, namely a mortgage to the Commonwealth Bank (the Bank) registered on 12 November 2008 and two other caveats lodged on 9 March 2011 and 30 June 2011.
Mr Bateson received a notice from the Registrar pursuant to s 138B of the TLA, which indicated that the caveat would lapse at midnight on Monday, 17 December 2012, unless extended by an order of the Court. Mr Bateson's application to extend the caveat was…
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- Bateson v Jones [2013] WASC 8
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CaseChat Overview and Summary
The court examined the nature of the interest claimed by Mr. Bateson and noted that while the lapse of the caveat might destroy the benefit of the proprietary interest, it was not a conclusive consideration. The court retained discretion on whether to make the order sought. The court also considered the balance of convenience, taking into account the potential prejudice to the purchasers and other caveators. In this case, the interest claimed by Mr. Bateson was a security interest, making the balance of convenience issues decisive. The court further examined Mr. Bateson's personal circumstances, his employment status, and his ongoing legal proceedings against the Joneses. The court found no evidence of impropriety by the bank in selling the property, as the purchasers were aware of the caveats.
The court concluded that the balance of convenience did not favor the extension of Mr. Bateson's caveat. The court acknowledged Mr. Bateson's financial difficulties and health issues but considered these factors in light of the broader implications for the purchasers and other caveators. The court determined that extending the caveat would cause more significant prejudice than allowing it to lapse.
The final orders of the court were that the application by Mr. Bateson to extend the caveat should be dismissed, and the caveat should be removed from the register.
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
First, Mr Bateson says that the lapse of the caveat will remove any chance of him recovering any moneys from the property. An important factor in considering where the balance of convenience lies is that removal of a caveat will in many cases have the effect of destroying the benefit of the proprietary interest claimed in the caveat: see Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42, 50. However, that is not, inevitably, a conclusive consideration in favour of the extension (or against the removal) of a caveat. The Court retains a discretion as to whether to make the order sought. In Navarac Pty Ltd v Moondancer Holdings Pty Ltd [2009] WASCA 95, which concerned an application to show cause why a caveat should not be removed under s 138 of the TLA, Pullin JA observed (at [22]):It is true that experience shows that parties are most commonly in dispute about the existence of a caveatable interest. Balance of convenience issues are usually of little or no significance where the caveator claims an estate in fee simple or a leasehold estate. In those fairly common cases, it is 'unusual', as Owen J states, that once an arguable case is made out by the caveator that there is such a caveatable interest, that balance of convenience issues will result in removal. However, if for example the interest claimed by the caveator is a security interest or an interest in competition with another claimant against the registered proprietor, then balance of convenience issues may become decisive. This case is a case of the kind to which his Honour was referring. I will return to this issue in a moment. Secondly, Mr Bateson points to the fact that he suffers from some health issues at present, and is in some financial difficulty as he is not presently employed. Thirdly, Mr Bateson points to the fact that he has commenced proceedings in the District Court to recover the money he claims is owed to him by Mr and Mrs Jones. Fourthly, Mr Bateson suggested that the Bank had engaged in impropriety in permitting the sale of the property when caveats are still registered. That is not what is occurring, having regard to the affidavit material before me. The purchasers were, as a condition of the contract of sale of the property, put on notice about the existence of the caveats over the property. As I have noted, the other two caveators have apparently agreed, at least in principle, to remove their caveats. The present application is concerned with whether or not Mr Bateson's caveat should be extended. The essence of Mr Bateson's complaint of impropriety in the Bank's conduct, however, is that he claims that the Bank wrote to him on 12 September 2012 and advised that the property had been sold. (A copy of that letter is annexed to Mr Bateson's affidavit of 17 December 2012.) Mr Bateson claims that that was a misrepresentation. However, I note that the contract of sale was entered into on 6 September 2012. There does not appear to be any evidence before the Court of any illegality or impropriety on the part of the Bank in selling the property.