JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: BOMFORD -v- BARRETT [2002] WASC 304
CORAM: ROBERTS-SMITH J
HEARD: 3 DECEMBER 2002
DELIVERED : 3 DECEMBER 2002
FILE NO/S: CIV 1672 of 2002
BETWEEN: RUSSELL MITCHELL BOMFORD
Plaintiff
AND
BARRY BRIAN JOHN BARRETT
Respondent
Catchwords:
Real property - Caveats - Removal of caveat - Transfer of Land Act s 138 - Caveator beneficiary under a will - Principles to be applied - Turns on own facts
Legislation:
Transfer of Land Act 1893 (WA), s 138
Result:
Order that caveat be removed
Category: B
Representation:
Counsel:
Plaintiff: Mrs P M V Edward
Respondent: In person
Solicitors:
Plaintiff: Verschuer Edward
Respondent: In person
Case(s) referred to in judgment(s):
Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42
Deputy Commissioner of Taxation v Corwest Management [1978] WAR 129
Eng Mee Yong v Letchumanan [1980] AC 331
Halse v Embling, unreported; FCt SCt of WA; Library No 970734; 22 December 1997
In the Estate of Graham (1978) 20 SASR 198
In the Estate of Hines v Hines [1999] WASC 111
J and H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546
Porter v McDonald v The Registrar of Titles [1984] WAR 271
Case(s) also cited:
Donaldson v Harvey & Anor, unreported; SCt of WA (Parker J); Library No 970304; 17 June 1997
FAI General Insurance Co Ltd v Burns (1996) 9 ANZ Ins Cas 61384
Fountain Selected Meat (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134
Palmer v Mullins Investments Pty Ltd (In liquidation) v Registrar of Titles, unreported; SCt of WA (Murray J); Library No 920352; 26 June 1992
Re Malley SM; Ex parte Gardner [2001] WASCA 83
ROBERTS-SMITH J: By originating summons dated 21 May 2002, the plaintiff seeks an order that the defendant show cause why caveat I58106C lodged on 28 March 2002 against the land described as lot 82 on plan 238 being land in Certificate of Title vol 1690 folio 890 should not be removed. That seems to reflect a degree of confusion because what is obviously sought is not an order that the defendant show cause, but rather that he show cause why an order removing the caveat should not be made.
The application is made under s 138 of the Transfer of Land Act 1893 (WA) ("the Act"). By s 137 of the Act any beneficiary or other person claiming any estate or interest in land under the operation of the Act or inter alia by devolution in law or otherwise may lodge a caveat against the land. By s 138 of the Act a proprietor in respect of whose land a caveat is lodged may apply for an order calling upon the caveator to show cause why it should not be removed.
The originating summons is supported by an affidavit of Russell Mitchell Bomford…
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- AGLC
- Bomford v Barrett [2002] WASC 304
- Case
- [2002] WASC 304
- Decision Date
CaseChat Overview and Summary
The primary legal issue in the case was whether the onus of proving the existence of a caveatable interest lies with the caveator when an application is made for the removal of a caveat. The court also considered whether the balance of convenience is a relevant factor in determining the application. This issue was of significant importance as it impacted the procedural rights and obligations of parties involved in land dealings and the registration process.
In resolving the case, the court referred to a number of precedents, including Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd and J and H Just (Holdings) Pty Ltd v Bank of New South Wales. The court emphasised that the primary purpose of a caveat is to act as an interlocutory injunction to prevent registration of dealings until the caveator has had an opportunity to oppose it. The court further clarified that the onus of proof in such proceedings lies on the caveator to demonstrate that there is a serious question to be tried regarding the existence of a caveatable interest. While the balance of convenience is a factor to be considered, interlocutory removal of a caveat is generally unusual unless there is a clear demonstration of an arguable interest.
The court concluded that the onus of demonstrating the existence of a caveatable interest lies with the caveator, and the balance of convenience is a relevant factor to be considered in the application for removal of the caveat. The reasoning and principles established in this case provide important guidance for parties involved in similar disputes regarding land registration and caveats.
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
The principle was qualified and explained in Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd(1992) 8 WAR 42. His Honour the Chief Justice noted that the concept of a caveat as a form of statutory injunction was clearly stated by Barwick CJ with whom McTiernan and Owen JJ agreed in J and H Just (Holdings) Pty Ltd v Bank of New South Wales(1971) 125 CLR 546, 552 in the following passage:"Its purpose is to act as an injunction to the Registrar‑General to prevent registration of dealings with the land until notice has been given to the caveator. This enables the caveator to pursue such remedies as he may have against the person lodging the dealing for registration. The purpose of the caveat is not to give notice to the world or to persons who may consider dealing with the registered proprietor of the caveator's estate or interest though if noted on the certificate of title it may operate to give such notice."Windeyer J said at 558:"… The primary purpose of a caveat against dealings is not to give notice to the world of an interest. It is to warn the Registrar-General of a claim. The word caveat has long been used in law to describe a notice given to an official not to take some step without giving the caveator an opportunity to oppose it." The Chief Justice observed that it is in the sense stated by Barwick CJ and Windeyer J that a caveat is a form of statutory injunction of an interlocutory character. As to the onus of proof on an application of this kind Owen J, with whom the Chief Justice and Walsh J agreed, said at 48:"… The onus lies on a caveator in proceedings under section 138 to demonstrate that there is a valid caveatable interest or, more correctly, that there is a serious question to be tried on the issue." His Honour referred to Eng Mee Yong v Letchumanan[1980] AC 331 and the following passage of Lord Diplock in delivering the advice of the Privy Council:"This is the nature of the onus that lies upon the caveator in an application by the caveatee under s 327 for the removal of a caveat: he must first satisfy the court that on the evidence presented to it his claim for an interest in the property does raise a serious question to be tried and having done so, he must go on to show that on the balance of convenience it would be better to maintain the status quo until the trial of the action, by preventing the caveatee from disposing of his land to some third party." And then said:"This pronouncement is clearly correct insofar as it deals with the onus of demonstrating the existence of a caveatable interest. The reference to the balance of convenience requires further comment." His Honour then went on to refer to Porter v McDonaldand a number of other cases, following which he concluded (at 50) that the balance of convenience is a factor to be considered in an application under section 138 but that interlocutory removal of a caveat where an arguable interest as to the existence of the caveatable interest has been demonstrated would be unusual. His Honour observed that in his opinion it would be wrong to confine Rowland J's approach to situations where the caveatee concedes that a caveatable interest exists.