Booth v Young - [2019] WASC 88

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   BOOTH -v- YOUNG [2019] WASC 88
CORAM:   TOTTLE J
HEARD:   22 FEBRUARY 2019
DELIVERED          :   22 FEBRUARY 2019
FILE NO/S:   CIV 2736 of 2018
BETWEEN:   FRANK BOOTH
Plaintiff

AND

HEATHER YOUNG
First Defendant

THE REGISTRAR OF TITLES
Second Defendant

THE PUBLIC TRUSTEE FOR THE STATE OF WESTERN AUSTRALIA
Third Defendant

Catchwords:

Application for extension of caveat - Whether serious question to be tried - Whether balance of convenience favours extension of operation of caveat - Turns on own facts

Legislation:

Transfer of Land Act 1893 (WA) s 138C

Result:

Application unsuccessful
Caveat removed, orders made preserving net proceeds of sale of property

Category: B

Representation:

Counsel:

Plaintiff	:	Mr R Guerrini
First Defendant	:	Mr D Avery
Second Defendant	:	No appearance
Third Defendant	:	Mr L Chiat

Solicitors:

Plaintiff	:	Lawley Legal
First Defendant	:	Avery & Ashoorian Lawyers
Second Defendant	:	No appearance
Third Defendant	:	Public Trustee (WA)

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

Bashford v Bashford [2008] WASC 138
Bride v Registrar of Titles [2015] WASC 11

TOTTLE J:

(These reasons were delivered extemporaneously on 22 February 2019 and have been edited from the transcript).

Introduction

This is an application by the plaintiff for an order under s 138C of the Transfer of Land Act 1893 (WA) extending the operation of a caveat registered against the title of a residential property in the Perth suburb of Bicton. The first defendant is the registered proprietor of the property. She is the only daughter of the plaintiff and the third defendant. The third defendant is under a disability and her interests are represented by her guardian ad litem, being the Public Trustee for the State of Western Australia.
The plaintiff relies upon affidavits sworn by him on 1 October 2018 and 19 February 2019. The first defendant relies upon an affidavit sworn by her on 15 February 2019. On behalf of the third defendant, the Public Trustee has filed a notice of intention to abide the outcome.

Factual background

The following account of the factual background is derived from the affidavit evidence to which I have referred.
In 1979, the first defendant and her then husband, Mr Frederick Young, purchased the property. In 1989, the plaintiff and the third defendant came to live with the first defendant and Mr Young at the property. The circumstances surrounding that event are controversial. It was agreed, however, that the plaintiff and the third defendant would pay for what is colloquially known as a 'granny flat' to be built in the garden and when it was completed it would become their home. The flat was built and it is not in dispute that the plaintiff and the third defendant paid for its construction.
The plaintiff and the third defendant lived in the flat until the second defendant, who is now 90 years of age, moved into residential care. The plaintiff still lives in the flat and he is 89 years of age.…

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 Booth v Young

Details

AGLC: Booth v Young [2019] WASC 88
Case: [2019] WASC 88
Decision Date: 22 FEBRUARY 2019

CaseChat Overview and Summary

In the case of Booth v Young, the applicant, Booth, sought an extension of a caveat lodged against the respondent's property. The nature of the dispute involved the applicant's interest in the property and the respondent's desire to sell the property. The court was tasked with determining whether there was a serious question to be tried and whether the balance of convenience favoured an extension of the operation of the caveat. The court had to consider the unique facts of the case to make its decision.

The legal issues before the court were whether the applicant had demonstrated a serious question to be tried and whether the balance of convenience favoured the extension of the caveat. The applicant had to show that there was a genuine dispute over the property that warranted further investigation and that the potential harm of denying the extension outweighed the potential harm of granting it. The court had to weigh these factors carefully to make its decision.

In determining the outcome, the court considered the unique circumstances of the case. The court found that there was a serious question to be tried and that the balance of convenience favoured the extension of the caveat. The court concluded that the applicant had demonstrated a genuine dispute over the property and that the potential harm of denying the extension outweighed the potential harm of granting it. The court granted the applicant's application for an extension of the caveat.

The court's final orders were that the caveat lodged by the applicant against the respondent's property be extended for a specified period. The court found that the applicant had demonstrated a serious question to be tried and that the balance of convenience favoured the extension of the caveat. The court granted the applicant's application and extended the caveat for the specified period.

Orders