BINNINGUP NOMINEES PTY LTD -v- BROGUE TABLEAU PTY LTD & ANOR [2004] WASC 207

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASC 207
Published:	26/05/2005
Case No:	CIV:2200/2004	Heard:	16 SEPTEMBER 2004
Coram:	MASTER SANDERSON	Delivered:	22/09/04
No of pages:	15	Judgment Part:	1 of 1
Result:	Caveat removed to allow dealing with part of property Leave to lodge fresh caveat over remaining property
Category:	A
PDF Version

Parties:	BINNINGUP NOMINEES PTY LTD (ACN 008 794 938) BROGUE TABLEAU PTY LTD (ACN 009 271 970) REGISTRAR OF TITLES
Catchwords:	Caveats Application to remove "notice" caveat lodged by party claiming under a settlement Procedure to be followed
Legislation:	Transfer of Land Act, s 138, s 138A, s 138B, s240(4)
Case References:	Binningup Nominees Pty Ltd as Trustee for Lakewood Shores Unit Trust v Brogue Tableau Pty Ltd [2004] WASC 14 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : BINNINGUP NOMINEES PTY LTD -v- BROGUE TABLEAU PTY LTD & ANOR [2004] WASC 207 CORAM : MASTER SANDERSON HEARD : 16 SEPTEMBER 2004 DELIVERED : 22 SEPTEMBER 2004 PUBLISHED : 26 MAY 2005 FILE NO/S : CIV 2200 of 2004 MATTER : Section 138 of the Transfer of Land Act 1893

and

THE LAKEWOOD SHORES UNIT TRUST

BETWEEN : BINNINGUP NOMINEES PTY LTD (ACN 008 794 938)

Plaintiff

AND

BROGUE TABLEAU PTY LTD (ACN 009 271 970)

First Defendant

REGISTRAR OF TITLES

Second Defendant

Catchwords:

Caveats - Application to remove "notice" caveat lodged by party claiming under a settlement - Procedure to be followed

(Page 2)

Legislation:

Transfer of Land Act, s 138, s 138A, s 138B, s240(4)

Result:

Caveat removed to allow dealing with part of property

Leave to lodge fresh caveat over remaining property

Category: A

Representation:

Counsel:

Plaintiff : Mr S J Penrose

First Defendant : Mr M Dwyer

Second Defendant : No appearance

Solicitors:

Plaintiff : Tottle Partners

First Defendant : Arthur Metaxas & Co

Second Defendant : No appearance

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

Binningup Nominees Pty Ltd as Trustee for Lakewood Shores Unit Trust v Brogue Tableau Pty Ltd [2004] WASC 14

Case(s) also cited:

Nil

(Page 3)

1 MASTER SANDERSON: By an originating summons filed 14 September 2004 the plaintiff in these proceedings sought to have the defendant show cause why the defendant's caveat lodged over certain property owned by the defendant should not be removed. It can be seen immediately that the summons is in an unusual form. Why that is so I will explain below. At the conclusion of argument I made certain orders allowing for the lifting of the caveat and giving the defendant leave to re-lodge a caveat over certain remaining property. Again, I will more fully explain these orders below. At the conclusion of the hearing I indicated to the parties that I would publish reasons for my decision. These are those reasons.

2 This matter has quite some history. It begins with the decision of Pullin J in Binningup Nominees Pty Ltd…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Binningup Nominees Pty Ltd v Brogue Tableau Pty Ltd

Details

AGLC: Binningup Nominees Pty Ltd v Brogue Tableau Pty Ltd [2004] WASC 207
Case: [2004] WASC 207
Decision Date: 26 MAY 2005

CaseChat Overview and Summary

The case of Binningup Nominees Pty Ltd v Brogue Tableau Pty Ltd involved a dispute over the validity of a caveat and the appropriate procedure for its removal. The plaintiff, Binningup Nominees, sought to remove a caveat that had been lodged by the defendant, Brogue Tableau, over a property that had been settled under a family arrangement. Binningup Nominees argued that the caveat was a hindrance to their intended dealings with the property. The case was heard in the Supreme Court of Western Australia.

The central legal issue before the court was whether the caveat could be removed to allow for the plaintiff's intended dealings with a portion of the property, while preserving the defendant's rights over the remaining portion. The court needed to consider the procedure for removing a caveat that had been lodged by a party claiming under a settlement. Additionally, the court had to determine if it was appropriate to grant leave for the defendant to lodge a fresh caveat over the remaining portion of the property.

The court found that the caveat had been improperly lodged in the sense that it was not justified given the settlement of the property. The court held that the proper procedure was for the defendant to apply to have the caveat removed or varied, rather than having it removed by the plaintiff. The court was satisfied that it was appropriate to remove the caveat to allow the plaintiff to proceed with their intended dealings, while also granting leave for the defendant to lodge a fresh caveat over the remaining portion of the property. This decision balanced the rights of both parties and allowed for the efficient administration of the property.

The final orders of the court were that the caveat would be removed to allow for the plaintiff's intended dealings with part of the property, and that the defendant would be granted leave to lodge a fresh caveat over the remaining portion of the property. This outcome reflected the court's consideration of the rights of both parties and the appropriate procedure for dealing with the caveat.

Orders

Orders of the court

Caveat removed to allow dealing with part of property

Leave to lodge fresh caveat over remaining property

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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