JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: BONI -v- KINGSOAK PTY LTD [2007] WASC 174
CORAM: JENKINS J
HEARD: 23 MAY 2007
DELIVERED : 31 JULY 2007
FILE NO/S: CIV 2320 of 2006
BETWEEN: RAYMOND JOHN BONI
Plaintiff
AND
KINGSOAK PTY LTD
Defendant
Catchwords:
Conveyancing - Caveats - Extension of a caveat - Purchaser's interest under an uncompleted contract for the sale of land - Vendor purported to terminate contract - Vendor's right to cancel contract if purchaser in default - Estoppel - Relief against forfeiture - Form of caveat
Legislation:
Builders Registration Act 1939 (WA), s 4
Transfer of Land Act 1893 (WA), s 137, s 138B, s 138C
Result:
Caveat extended
Category: B
Representation:
Counsel:
Plaintiff: Mr R E Birmingham QC & Mr B W Ashdown
Defendant: Ms W F Buckley
Solicitors:
Plaintiff: Western Legal
Defendant: Metaxas & Hager
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 Pty Ltd [1978] WAR 129
Fernandes v Houstein (1963) 4 FLR 355
Forder v Cemcorp Pty Ltd (2001) 51 NSWLR 48
Halse v Embling, unreported; FCt SCt of WA; Library No 970734; 22 December 1997
Ioppolo v Ioppolo (1978) 4 Fam LR 124
J & H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546
Jandric v Jandric [1999] WASC 22
Kuper v Keywest Constructions Pty Ltd (1990) 3 WAR 419
Legione v Hateley (1983) 152 CLR 406
Leros v Terara Pty Ltd (1992) 174 CLR 407
Masters v Cameron (1954) 91 CLR 353
Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537
Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315
Westminster Properties Pty Ltd v Comco Constructions Pty Ltd (1991) 5 WAR 191
JENKINS J: Pursuant to s 138C of the Transfer of Land Act 1893 (WA) ("the Act"), the plaintiff applies, by originating summons dated 8 December 2006, for an order extending the operation of a caveat until further order of this Court.
The plaintiff lodged the caveat, No J930962 ("the caveat"), over the defendant's land known as 17 Jacaranda Heights, High Wycombe and being Lot 17 on Deposited Plan 49522 and being the whole of the land comprised in Certificate of Title Volume 2633 Folio 515 ("the subject land"). The interest claimed by the plaintiff in the caveat is an interest based on a contract for the sale of land entered into by the plaintiff and the defendant on 16 February 2006 or the doctrine of resulting trust.
The defendant denies that the plaintiff has any interest in the subject land and says that the caveat is defective. It therefore objects to the extension of the caveat. The defendant required the Registrar of Titles to serve a notice on the plaintiff pursuant to the…
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- AGLC
- Boni v Kingsoak Pty Ltd [2007] WASC 174
- Case
- [2007] WASC 174
- Decision Date
CaseChat Overview and Summary
The key legal issues in the case were whether Mr Boni had a caveatable interest in the land and whether the balance of convenience favoured the retention of the caveat. The court had to consider the nature of the interest that a purchaser under an uncompleted contract for the sale of land has in the land, and whether that interest is sufficient to support a caveat. The court also had to consider whether the balance of convenience favoured the retention of the caveat.
The court found that Mr Boni had a caveatable interest in the land under the uncompleted contract for sale. The court held that the interest of a purchaser under such a contract is an equitable interest which can be protected by a caveat. The court also found that the balance of convenience favoured the retention of the caveat, as there was a serious question to be tried as to whether Mr Boni was entitled to specific performance of the contract. The court noted that if there is a serious question to be tried, it will usually be in the interests of justice to maintain the status quo by preventing the disposal of the land until the question is resolved.
The court dismissed the defendants' application to remove the caveat and ordered that the caveat remain in place.
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
It is clear from the statutory scheme that in an application under the Act, s 138C the onus is upon the caveator to satisfy the court that the caveator's claim has or may have substance. This has been interpreted as an onus to satisfy the court that there is a serious question to be tried as to whether a caveatable interest exists; that is that the plaintiff has an arguable case that he has a proprietary interest in the land. The caveator must also satisfy the court that the balance of convenience favours the retention of the caveat in that it would be better to maintain the status quo until the trial of the action by preventing the caveatee from disposing of the land to a third party. If there is a serious question to be tried it will be unusual for the balance of convenience to lie in the refusing of an application to extend a caveat: Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42. If there is a serious question to be tried but the validity of it can only be determined by findings of fact then the caveat should remain and the caveator should be left to proceed by way of action to establish the interest or estate: Deputy Commissioner of Taxation v Corwest Management Pty Ltd [1978] WAR 129 at 141 per Brinsden J; Halse v Embling, unreported; FCt SCt of WA; Library No 970734; 22 December 1997 at [11] per Parker J. A caveator has a right to lodge and maintain a caveat over land if the caveator has an estate or interest in the caveated land. It has been held that the interest of a purchaser under an uncompleted agreement for the sale of land has an interest in the land which may be protected by a caveat: Fernandes v Houstein (1963) 4 FLR 355 and the cases cited therein. The decision of Kuper v Keywest Constructions Pty Ltd (1990) 3 WAR 419 has been cited in subsequent decisions, both in Western Australia and elsewhere, as authority for the proposition that a purchaser under an uncompleted conditional agreement for the sale of land has in interest in the land which may be protected by a caveat: see for example Forder v Cemcorp Pty Ltd (2001) 51 NSWLR 486. The facts of Kuper's case were that the vendor purported to terminate a conditional contract for the sale of land for failure to fulfil the conditions which related to the obtaining of town planning approval and registration of a strata plan. The purchasers alleged that they were entitled to an order for specific performance of the contract and lodged a caveat to protect their interest in the land. The Full Court based its decision on the view that the extent of a purchaser's interest in the land to be purchased is to be measured by the protection which equity will afford the purchaser, including an injunction and specific performance. Malcolm CJ (Pidgeon and Seaman JJ agreeing) at 432 found that "in appropriate circumstances" a court would be prepared to grant an injunction or order specific performance. Thus "the estate or interest claimed by the purchasers was sufficient to grant a caveatable equitable estate in the relevant land, notwithstanding the conditional nature of the contract".