BENSON -v- BENSON [2008] WASC 13
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASC 13 | |
| 03/02/2008 | |||
| Case No: | CIV:2085/2007 | 29 OCTOBER & 21 NOVEMBER 2007 | |
| Coram: | MURRAY J | 20/11/07 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Terms of caveat amended Operation of caveat extended conditionally | ||
| B | |||
| PDF Version |
| Parties: | BERNARD JOHN BENSON GLORIA VERONICA BENSON REGISTRAR OF TITLES |
Catchwords: | Practice and procedure Application to extend operation of caveat Limits of power to amend caveat Test for grant of relief Whether an arguable case for interest in land by way of contract or constructive trust |
Legislation: | Transfer of Land Act 1893 (WA), s 138B, s 138C |
Case References: | Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42 Devere Holdings Pty Ltd v Verge [2006] WASC 297 Giumelli v Giumelli (1999) 197 CLR 101 Hayes v O'Sullivan (2001) 24 WAR 40 in de Braekt v Powell [2007] WASCA 55; (2007) 33 WAR 389 Kais v Turvey (1994) 11 WAR 357 Midland Brick Co Pty Ltd v Welsh [2006] WASC 122 Professional Services of Australia Pty Ltd v Mila Properties Pty Ltd [2004] WASC 30 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
GLORIA VERONICA BENSON
First Defendant
REGISTRAR OF TITLES
Second Defendant
Catchwords:
Practice and procedure - Application to extend operation of caveat - Limits of power to amend caveat - Test for grant of relief - Whether an arguable case for interest in land by way of contract or constructive trust
Legislation:
Transfer of Land Act 1893 (WA), s 138B, s 138C
(Page 2)
Result:
Terms of caveat amended
Operation of caveat extended conditionally
Category: B
Representation:
Counsel:
Plaintiff : Mr A P Skerritt
First Defendant : Mr I T Blatchford
Second Defendant : No appearance
Solicitors:
Plaintiff : Great Southern Legal Pty Ltd
First Defendant : Haynes Robinson
Second Defendant : No appearance
Case(s) referred to in judgment(s):
Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42
Devere Holdings Pty Ltd v Verge [2006] WASC 297
Giumelli v Giumelli (1999) 197 CLR 101
Hayes v O'Sullivan (2001) 24 WAR 40
in de Braekt v Powell [2007] WASCA 55; (2007) 33 WAR 389
Kais v Turvey (1994) 11 WAR 357
Midland Brick Co Pty Ltd v Welsh [2006] WASC 122
Professional Services of Australia Pty Ltd v Mila Properties Pty Ltd [2004] WASC 30
(Page 3)
- MURRAY J:
The litigation so far
1 On 26 October 2007 the plaintiff applied for an order extending the operation of caveat no K296745C which had been lodged originally on 7 August 2007. As I understand it, this was a caveat to which the Transfer of Land Act 1893 (WA)…
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- AGLC
- Benson v Benson [2008] WASC 13
- Case
- [2008] WASC 13
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CaseChat Overview and Summary
In the Family Court of Australia, the case of Benson v Benson concerned an application by the respondent to extend the operation of a caveat lodged over certain land. The appellant had previously been granted an order that the caveat be removed. The respondent sought to amend the caveat to include a specific term and extend its operation. The Family Court was tasked with determining whether the respondent had an arguable case for an interest in the land, either by way of contract or constructive trust, which would justify the amendment and extension of the caveat.
The legal issues before the court involved the limits of the court's power to amend a caveat and the appropriate test for granting relief in such circumstances. Specifically, the court had to assess whether the respondent had established a sufficient basis to argue for an interest in the land, which would warrant the amendment and extension of the caveat. The court considered whether the respondent's claims met the threshold for an arguable case and if such a case would affect the balance of convenience in favour of the respondent.
The court determined that the respondent had demonstrated an arguable case for an interest in the land. The respondent's claims, if proven, would entitle them to a significant interest in the property, which would alter the balance of convenience. Consequently, the court exercised its discretion to amend the caveat to include the specific term requested by the respondent and extended its operation conditionally, pending the outcome of further proceedings. The court's decision was grounded in the need to protect the respondent's potential interest in the property and to ensure a fair resolution of the dispute.
The legal issues before the court involved the limits of the court's power to amend a caveat and the appropriate test for granting relief in such circumstances. Specifically, the court had to assess whether the respondent had established a sufficient basis to argue for an interest in the land, which would warrant the amendment and extension of the caveat. The court considered whether the respondent's claims met the threshold for an arguable case and if such a case would affect the balance of convenience in favour of the respondent.
The court determined that the respondent had demonstrated an arguable case for an interest in the land. The respondent's claims, if proven, would entitle them to a significant interest in the property, which would alter the balance of convenience. Consequently, the court exercised its discretion to amend the caveat to include the specific term requested by the respondent and extended its operation conditionally, pending the outcome of further proceedings. The court's decision was grounded in the need to protect the respondent's potential interest in the property and to ensure a fair resolution of the dispute.
Orders
Orders of the court
1. Terms of caveat amended
2. Operation of caveat extended conditionally
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
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