Bizcap AU Pty Ltd v Sharma - [2024] WASC 198

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   BIZCAP AU PTY LTD -v- SHARMA [2024] WASC 198
CORAM:   HILL J
HEARD:   14 MAY 2024
DELIVERED          :   14 MAY 2024
PUBLISHED           :   30 MAY 2024
FILE NO/S:   CIV 1502 of 2024
BETWEEN:   BIZCAP AU PTY LTD
Applicant
AND
ANKITA SHARMA
First Respondent
VARUN GAUTAM SHARMA
Second Respondent
REGISTRAR OF TITLES
Third Respondent

Catchwords:

Real property - Application to extend operation of caveat - Where previous caveat lapsed and new absolute caveat lodged - Applicant's interest arises under loan agreement with company - Where first respondent a former director of the company - First respondent denies electronically signing loan agreement with applicant - Requirements for electronic signature - Whether applicant has established claim to interest in land has or may have substance - Balance of convenience - No undertaking as to damages given - Turns on own facts

Legislation:

Transfer of Land Act 1893 (WA) s 138, s 138B, s 138C, s 138D
Electronic Transactions Act 2011 (WA) s 10

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	B Willesee
First Respondent	:	P A Martino
Second Respondent	:	P A Martino
Third Respondent	:	No appearance

Solicitors:

Applicant	:	Summer Lawyers
First Respondent	:	P A Martino Barrister & Solicitor
Second Respondent	:	P A Martino Barrister & Solicitor
Third Respondent	:	No appearance

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

Bride v The Registrar of Titles [2015] WASC 11
Custom Credit Corp Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42
Gangemi v Gangemi [2009] WASC 195
Midland Brick Company Pty Ltd v Welsh [2006] WASC 122
Navarac Pty Ltd v Moondancer Holdings Pty Ltd [2009] WASCA 95; (2009) 40 WAR 150
Palazza Homes Pty Ltd v Goh [2010] WASC 407

HILL J:

(This judgment was delivered extemporaneously and has been edited from the transcript.)

On 23 April 2024, Landgate issued a notice to the applicant on the application of the first respondent pursuant to s 138B of the Transfer of Land Act1893 (WA) (Act) in respect of caveat P936923 (Caveat), which has been lodged over the interest of the first respondent in Lot 200 on Plan 22900, being the whole of the land described in Certificate of Title Volume 2144 Folio 543, known as 14 Tranby Road, Maylands (Property). The Property is owned by the first and second respondents as joint tenants. The notice given by Landgate states that the Caveat will lapse at midnight on 14 May 2024 unless an order is obtained from this court extending the Caveat. This notice was received by the applicant on 23 April 2024.
By originating summons filed 3 May 2024, the applicant seeks to extend the operation of the Caveat pursuant to s 138C of the Act. A certificate of urgency was filed with a summons seeking an immediate hearing of the application, together with a memorandum pursuant to O 59 r 9(2) seeking a waiver of the obligation of conferral. Two undertaking as to damages…

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.

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Details

Case: [2024] WASC 198
Decision Date: 30 MAY 2024

CaseChat Overview and Summary

Bizcap AU Pty Ltd brought an application to the Supreme Court of New South Wales seeking to extend the operation of a caveat over a property owned by Sharma. Bizcap’s initial caveat had lapsed, but the company sought to lodge a new absolute caveat, asserting an interest in the property under a loan agreement with Sharma. Sharma contested the application, denying that he had electronically signed the loan agreement with Bizcap. The case required the court to determine the validity of the electronic signature and whether Bizcap had demonstrated a claim to an interest in the property that had or might have substance. The court also needed to assess the balance of convenience in the absence of an undertaking as to damages.

The court examined the requirements for a valid electronic signature and concluded that Bizcap had not satisfied the burden of establishing that Sharma had indeed signed the loan agreement electronically. This was crucial as the validity of Bizcap’s claim to an interest in the property hinged on the enforceability of the loan agreement. The court further assessed the balance of convenience and noted that Bizcap had not provided an undertaking as to damages, which would typically be a mitigating factor in favour of granting the extension. Given these findings, the court held that Bizcap had not met the necessary criteria to warrant the extension of the caveat.

Accordingly, the court dismissed Bizcap’s application. The decision underscores the importance of stringent requirements for electronic signatures and the necessity for claimants to convincingly demonstrate their interest in property when seeking to extend a caveat. The court emphasised that each case turns on its own facts, highlighting the need for comprehensive evidence to substantiate claims in such proceedings.

Orders