Burns v Bayliss - [2006] WASC 102

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: BURNS & ORS -v- BAYLISS & ORS [2006] WASC 102

CORAM: BLAXELL J

HEARD: 26 APRIL 2006

DELIVERED : 2 JUNE 2006

FILE NO/S: CIV 1359 of 2006

BETWEEN: BEVLY COLIN BURNS
PETER WAYNE BURNS
LYNETTE SYLVIA PUTRINO
Plaintiffs
AND
PAMELA CHARMAINE BAYLISS
DARYL LAWRENCE BAYLISS
First Defendants
REGISTRAR OF TITLES
Second Defendant

Catchwords:

Caveats - Application to extend operation of caveat - Caveat lodged by beneficiaries of deceased estate still subject to administration - Caveat lodged against land held by deceased and first defendants as joint tenants, but previously held by them as tenants in common - Transfer to joint tenancy in circumstances of alleged unconscionability - Whether plaintiffs have standing to apply for extension of caveat - Whether plaintiffs have a caveatable interest

Legislation:

Transfer of Land Act 1893 (WA), s 137, s 138B, s 138C

Result:

Order extending operation of caveat

Category: B

Representation:

Counsel:

Plaintiffs:     Mr T M Hobday
First Defendants           :     Mr C D Clifton
Second Defendant         :     No appearance

Solicitors:

Plaintiffs:     Lewis Blyth & Hooper
First Defendants           :     Martin de Haas Commercial Lawyers Pty Ltd
Second Defendant         :     No appearance

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

Bridgewater v Leahy (1998) 194 CLR 457
Canny Gabriel Castle Jackson Advertising Pty Ltd v Volume Sales (Finance) Pty Ltd (1974) 131 CLR 321
Connell v Bond Corporation Pty Ltd (1992) WAR 352
Costa & Duppe Properties Pty Ltd v Duppe [1986] VR 90
Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42
Frazer v Walker [1967] AC 569
Halse v Embling, unreported; FCt SCt of WA; Library No 970734; 22 December 1997
Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1978 - 1979) 143 CLR 134
Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306
Porter v McDonald & Registrar of Titles [1984] WAR 271
Ramage v Wayclaw (1988) 12 NSWLR 84
Re Atkinson (Dec) [1971] VR 612
Stainton v Carron Co [1854] 52 ER 58

Case(s) also cited:

Bahgat v ASC (1995) 16 ACSR 536
Ford & Marshall v Marshall [2003] WASC 116
Horton v Jones (1935) 53 CLR 475
J & H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546
Livingston v Commissioner of Stamp Duties (Qld) (1960) 107 CLR 411

BLAXELL J: This is an application under s 138C of the Transfer of Land Act 1893 (WA) ("the Act") to extend the operation of a caveat against land of which the first defendants and Bevly John Furniss Burns ("the deceased") are registered as proprietors. The improvements on the land include a duplex dwelling, the front of which was occupied by the deceased until his death on 7 February 2005. At all material times the first defendants have occupied the rear duplex on the land.
The land was formerly held by the registered proprietors as tenants in common, with the deceased and the first defendants being respectively entitled to one‑half shares.…

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.

Keep reading for free

Create a free CaseChat account to read Burns v Bayliss and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] WASC 102
Decision Date: 2 JUNE 2006

CaseChat Overview and Summary

Burns v Bayliss was a case heard in the Supreme Court of Western Australia. The plaintiffs, who were the beneficiaries of the estate of a deceased person, sought to extend the operation of a caveat against the transfer of land held by the deceased and the first defendants as joint tenants. The plaintiffs claimed to have a caveatable interest in the property based on an alleged unconscionability in the transfer of the property to joint tenancy. The legal issues before the court were whether the plaintiffs had standing to apply for an extension of the caveat and whether they had a caveatable interest in the property. The court held that the plaintiffs, as beneficiaries of the deceased's estate, did not have any legal or equitable ownership in the assets of the estate. The court also held that the claimed entitlement to equitable relief in respect of the alleged unconscionability of the transaction did not constitute a proprietary interest in the land. The court held that a caveatable interest must be a proprietary interest in land and that the plaintiffs had not established that there was a serious issue as to the existence of their claimed caveatable interest.

The court found that the plaintiffs had not satisfied the requirement under section 138C of the Transfer of Land Act 1893 (WA) that the caveator's claim has or may have substance. The court held that in order to establish that there is such a "serious question", it need only be shown that the claim is more than merely frivolous or vexatious, and that on the evidence before the Court the caveator might ultimately succeed in establishing the interest on which the caveat purports to be founded. The court found that the plaintiffs had not made out such a case and accordingly dismissed the application for an extension of the caveat. The court held that the plaintiffs' status as beneficiaries of the deceased's estate did not give them any legal or equitable ownership in the assets of the estate, and that the claimed entitlement to equitable relief in respect of the alleged unconscionability of the transaction on 17 February 2004 did not constitute a proprietary interest in the land. The court held that a caveatable interest must be a proprietary interest in land and that the plaintiffs had not established that there was a serious issue as to the existence of their claimed caveatable interest.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Section 138C of the Transfer of Land Act 1893 (WA) provides the Court with a discretion to extend the operation of a caveat if "satisfied that the caveator's claim has or may have substance". This requirement will be met if there is evidence before the Court to show that the claim to an interest in the property does raise a serious question to be tried: (Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42, 48). In order to establish that there is such a "serious question", it need only be shown that the claim is more than merely frivolous or vexatious, and that on the evidence before the Court the caveator might ultimately succeed in establishing the interest on which the caveat purports to be founded: (Halse v Embling, unreported; FCt SCt of WA; Library No 970734; 22 December 1997). Once it is established that there is such a serious question, the Court will exercise its discretion having regard to the same factors that are relevant to an application for an interim injunction: (Porter v McDonald & Registrar of Titles [1984] WAR 271, 276). Accordingly, the caveator:" … 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." (Eng Mee Yong v Letchumanan [1980] AC 331) In the present instance the first defendants have not tendered any evidence nor made any submissions concerning the balance of convenience. It follows that the only real question to be determined is whether the plaintiffs have established that there is a serious issue (in the sense of an arguable case) as to the existence of their claimed caveatable interest. I can only be satisfied that the claimed interest "has or may have substance" if it is arguably a proprietary interest in the land. As was stated by Owen J in Custom Credit (ibid) at 50:"By its very nature, a caveatable interest must be a proprietary interest in land. The purpose of the caveat is to restrain the registered proprietor from dealing with the land in a way which will defeat or derogate from the incidents attaching to that proprietary interest until the respective rights of the parties have been honoured (if there is agreement) or determined (if there is disagreement). In many cases, removal of the caveat will have the effect of destroying for all practical purposes, the benefit of the proprietary interest." The plaintiffs' claim to a caveatable interest in the land, faces two hurdles. Firstly, the plaintiffs' status as beneficiaries of the deceased's estate does not give them any legal or equitable ownership in the assets of the estate. Secondly, there is the question whether the claimed entitlement to equitable relief in respect of the alleged unconscionability of the transaction on 17 February 2004 constitutes a proprietary interest in the land. Dealing with the first of these issues, the High Court held in Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306, at 312 ‑ 314, that:"Not only does the legal ownership in the property not vest in the named beneficiary at the time of death of the testator, nor does the equitable ownership. That emerges from the Privy Council's decision in Commissioner of Stamp Duties (Q) v Livingston (1964) 112 CLR 12; [1965] AC 694. The reason for this is that, prior to administration of the deceased estate, there is no specific property capable of constituting the subject property of any trust in favour of the beneficiary. It could not be said at that stage what part or parts of the testator's property would need to be realized for the purposes of administration. So it was held that the beneficiary does not have a proprietary interest in each of the assets which are the subject of the devise or bequest such that he or she can say 'this is mine' or 'this belongs to me'. ...The right which any beneficiary has in an unadministered estate springs from the duty of the executor to administer the estate, to preserve the assets and to deal with them in the proper manner. Each beneficiary has an interest in seeing that the whole of the assets are treated in accordance with the executor's duties. In that sense, the beneficiaries as a class may be said to have an interest in the entire estate. But it does not follow that each piece of property which goes to make up the estate is held on a particular trust for the beneficiary named as its intended recipient upon completion of administration: Horton v Jones (1935) 53 CLR 475 at 486. Whether or not the estate is held on a trust for the beneficiaries as a class in the usual sense in which the word 'trust' is used, so as to confer a specific proprietary interest, as distinct from a general, non‑specific interest, upon all beneficiaries, is not something which arises for consideration in this case."