Calabro v Big River Pty Ltd - [2022] WASC 242

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   CALABRO -v- BIG RIVER PTY LTD [2022] WASC 242
CORAM:   STRK J
HEARD:   4 JULY 2022
DELIVERED          :   4 JULY 2022
PUBLISHED           :   28 JULY 2022
FILE NO/S:   CIV 1685 of 2022
BETWEEN:   GIUSEPE SANTO CALABRO
Plaintiff
AND
BIG RIVER PTY LTD
First Defendant
THE REGISTRAR OF TITLES
Second Defendant

Catchwords:

Real property - Caveats - Application to remove a caveat - Whether the first defendant has shown cause why the caveat should not be removed - Turns on own facts

Legislation:

Transfer of Land Act 1893 (WA), s 138

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	M Vallve
First Defendant	:	P Hannan
Second Defendant	:	No appearance

Solicitors:

Plaintiff	:	Vallve Legal
First Defendant	:	Patane Lawyers
Second Defendant	:	No appearance

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

Brogue Tableau Pty Ltd v Binningup Nominees Pty Ltd [2007] WASCA 179; (2007) 35 WAR 27
Business Acquisitions Australia Pty Ltd v Renshall [2006] NSWSC 1238; (2006) 12 BPR 23,873
CIFG (Australia) Pty Ltd v Perna [2020] VSC 630
Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42
Depsun Pty Ltd v Tahore Holdings Pty Ltd (1990) ANZ Conv Rep 334
Deputy Commissioner of Taxation v Corwest Management Pty Ltd [1978] WAR 129
DP World Sydney Ltd v Guy [2016] NSWSC 1072; (2016) 262 IR 156
Elliott v Blanshard (1970) 17 FLR 7
Gangemi v Gangemi [2009] WASC 195
J and H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546
Jones v Dunkel (1959) 101 CLR 598
Kerabee Park Pty Ltd v Daley (1978) 2 NSWLR 222
Kingstone Constructions Pty Ltd v Cripel Pty Ltd (1991) 5 BPR 11,987
KWS Capital Pty Ltd v Love [2013] WASC 294
Leros Pty Ltd v Terara Pty Ltd [1992] HCA 22; (1992) 174 CLR 407
LTDC Pty Ltd v Cashflow Finance Australia Pty Ltd [2019] NSWSC 150
Magnolia Private Capital Pty Ltd v Floate [2022] WASC 131
Manttan v Equititrust Ltd [2010] NSWSC 931
Marinkovic v Pat McGrath Engineering Pty Ltd [2004] NSWSC 571; (2004) 61 NSWLR 150
Mario Casella & Sons Builders Pty Ltd v Duckworth [2005] WASC 245
Martin v Official Trustee in Bankruptcy [1990] Tas R 65
Midland Brick Company Pty Ltd v Welsh [2006] WASC 122
Midwarren Estates Pty Ltd v Retek & Stivic [1975] VR 575
Palazzo Homes Pty Ltd v Goh [2010] WASC 407
Paringawood Nominees Pty Ltd v Baulderstone [1999] SASC 380
Percy & Michele Pty Ltd v Gangemi [2010] VSC 530
Porter v McDonald [1984] WAR 271
Queensland Estates Pty Ltd v Co-ownership Land Development Pty Ltd [1969] Qd R 150
Rae v Olney (Unreported, WASC, Library No 960669, 22 November 1996)
Re The Victorian Farmers' Loan and Agency Co Ltd (1897) 22 VLR 629
Renascent Interiors and Refurbishers Pty Ltd v ASEL Property Group Pty Ltd [2002] NSWSC 345; (2002) 10 BPR 19,601
Romanous v Saleh [2008] NSWSC 656
Schmidt v Won [1997] VSC 24; [1998] 3 VR 435
Sulinmo Properties Pty Ltd v Malloney (1985) ANZ Conv Rep 25
Veloudos v Young (1981) 56 FLR 182
Yaran Holdings Pty Ltd v Goldsmith 7 Pty Ltd [2014] WASC 171

TABLE OF CONTENTS

Introduction

The evidence

The factual background

Form of caveat

The applicable principles

Power to amend caveat

Parties' submissions

Mr Calabro's position

Big River's position

Disposition

Application made on behalf of Mr Calabro at the conclusion of the hearing

Should the caveat be removed?

Form of the caveat

Undertaking as to damages

Conclusion and orders

Sch A – Big River's submissions, pt B, 'Chronology'.

STRK J:

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

Introduction

On Friday, 1 July 2022, the plaintiff, Giusepe Santo Calabro, filed an originating summons pursuant to s 138(2) of the Transfer of Land Act 1893 (WA). Mr Calabro applied for the first defendant, Big River Pty Ltd, to show cause why the caveat lodged by Big River on 13 May 2021 (Caveat O732768) as against the property commonly known as 5 Sorrento Street, North Beach (North Beach property), should not be removed.
While Caveat O732768 is also registered against the property commonly known as Apartment 10, 18 Bellevue Terrace, West Perth (Bellevue property), no application to show cause was made in relation to the Bellevue property.
A certificate of urgency was filed with the originating summons seeking an immediate hearing of the application. The application was listed for hearing on Monday, 4 July 2022 on notice to Big River. The removal of Caveat O732768 over the North Beach property was opposed by Big River.
The Registrar of Titles, the second defendant to this proceeding, took no part in the hearing of the application.
The principles to be applied in determining the application are well settled and were not in dispute. Further, for the purpose of this proceeding, Mr Calabro did not take issue with the nature of the interest claimed by Big River. That is, I understood Mr Calabro to accept that Big River holds a caveatable interest in the North Beach property and the Bellevue property as chargee. However, it was Mr Calabro's position that Caveat O732768 ought be removed over the North Beach property as Big River would otherwise be adequately secured.
Upon reading the materials filed and after hearing counsel for Mr Calabro and Big River, I found that Big River had shown cause why Caveat O732768 as against the North Beach property should not be removed. I refused to make the orders sought on behalf of Mr Calabro and I gave ex tempore reasons for decision. These are my reasons, edited from the transcript and which now include references in the form of a schedule and footnotes.

The evidence

On 1 July 2022, Mr Calabro swore an affidavit in support of the application, to which he attached documents marked GSC1 to GSC11. The affidavit was read and relied upon at the hearing of the application.
By his affidavit, among other things, Mr Calabro described proceedings commenced by a writ of summons filed in this court known as CIV 1520 of 2021 by Big River against GN Construction (Aust) Pty Ltd as first defendant, and Mr Calabro as second defendant; deposed to being the sole director of GN Construction; deposed to the existence of a caveat lodged by Big River over two of his properties, being Caveat O732768 over the North Beach property and the Bellevue property; attached current statements for two loan accounts secured against the Bellevue property; deposed to entering into a contract of sale for the North Beach property on 7 April 2021; deposed to the current loan balance as at 1 July 2021 secured against the North Beach property, being approximately $2.4 million; deposed to his belief that he has approximately $1.6 million in equity in the North Beach property; deposed to his wish to put the equity to be realised from the sale of the North Beach property towards the purchase of another property which is due to settle on 5 August 2022; and described the prejudice that he may suffer if he is not able to proceed to settle on the sale of the North Beach property on 5 July 2022.
At the hearing, counsel for Mr Calabro also relied upon a written outline of submissions filed on 2 July 2022.
On 2 July 2022, Bruce Blaise Patane sworn an affidavit in opposition to the application, to which he attached documents marked BBP‑1 to BBP‑38. Mr Patane is the principal of the firm Patane Lawyers, the solicitors for Big River in this proceeding and in the Supreme Court proceeding known as CIV 1520 of 2021. Mr Patane's affidavit was read and relied upon at the hearing.
By his affidavit, among other things, Mr Patane deposed to the properties registered in the name of Mr Calabro, and he attached copies of the relevant title searches and Caveat O732768; a copy of the credit agreement and guarantee dated 3 December 2013; and correspondence as between the parties that had not been attached to Mr Calabro's affidavit. Mr Patane gave particulars of the amount that Big River said it was entitled to seek for security pending the outcome of the Supreme Court proceeding known as CIV 1520 of 2021, being $1,299,786.11; the interest claimed; the costs incurred by Big River to date in the prosecution of the proceeding known as CIV 1520 of 2021; and provided an estimate of future costs.
At the hearing, counsel for Big River also relied upon a written outline of submissions filed on 3 July 2022.
After hearing from counsel but before I delivered my reasons, counsel for Mr Calabro sought to adjourn the hearing so that Mr Calabro could put further evidence before the court. Counsel informed the that a valuation of the Bellevue property in the amount of $6 million had been received and Mr Calabro sought the opportunity to read an affidavit that was not yet prepared that would put the valuation evidence before the court.[1] The application was refused for the reasons set out from [70] ‑ [74] below.
[1] ts 30 (4 July 2022).

The factual background

For the purpose of the application, counsel for Mr Calabro provided a high level overview of the background which gave rise to Mr Calabro commencing this proceeding and seeking that the application be heard and determined on an urgent basis.[2]
[2] Plaintiff's submissions pars 1 - 13.
The written submissions filed on behalf of Big River also described the factual background, and contained a comprehensive chronology to which I had regard in determining the application. The chronology is reproduced at sch A to these reasons.
The application was made in the circumstances described briefly below. I did not understand the following to be contentious.
Mr Calabro is a director of GN Construction. He is the registered proprietor of the North Beach property and the Bellevue property.
The North Beach property is subject to a first ranking registered mortgage in favour of Australia & New Zealand Banking Group Ltd (ANZ).
The Bellevue property is subject to a first ranking registered mortgage in favour of the National Australia Bank Ltd (NAB).
Big River contends that on 3 December 2013, Big River and GN Construction entered into a written agreement (Credit Agreement), which set out the terms on which Big River would supply goods and/or services to GN Construction on credit.
Big River contends that on 3 December 2013, Mr Calabro executed a written guarantee and indemnity (Guarantee) in favour of Big River in respect of GN Construction's obligations to Big River under the Credit Agreement.
The Guarantee provides, among other things, as follows:
Security
19. The Guarantors charge in favour of the Supplier all of their right, title and interest in any real property that the Guarantors own at present and in the future with the amount of their indebtedness hereunder until discharged, such indebtedness to include all amounts referred to in clauses 3 and 4 and including but not limited to those in clauses 13 and 14.
20.This Guarantee and Indemnity secures the repayment of all monies owed by the Applicant whatsoever, and this deed constitutes the entire guarantee.
On 13 May 2021, Big River lodged Caveat O732768 against the Bellevue property and the North Beach property.
On 14 June 2021, Big River commenced the proceeding known as CIV 1520 of 2021 against GN Construction as the first defendant and Mr Calabro as the second defendant. Big River seeks by the proceeding to recover from GN Construction a debt due under the Credit Agreement, together with interest and costs; and as against Mr Calabro as guarantor, orders for the sale of the Bellevue property and the North Beach property so as to recover the amounts owed by GN Construction.
GN Construction and Mr Calabro deny that Big River is entitled to the relief it seeks and GN Construction prosecutes a counterclaim in the proceeding known as CIV 1520 of 2021, which is defended.
In April of this year Mr Calabro entered into a contract to sell the North Beach property to a non‑party (North Beach Sale Contract), which provides for a $4.05 million purchase price, and for settlement to take place on 5 July 2022.
Mr Calabro deposed to holding approximately $2.4 million in equity in the Bellevue property and $1.6 million in the North Beach property.[3] It was Mr Callabro's contention that Big River would hold more than adequate security over the Bellevue property should the caveat over the North Beach property be removed.
[3] Affidavit of GS Calabro pars 16, 18 - 20; plaintiff's submissions par 11 - 12.
A significant amount of correspondence had passed as between the parties in relation to Caveat O732768 and what might constitute adequate alternate security before Mr Calabro entered into the North Beach Sale Contract. However, no agreement was reached as between Mr Calabro and Big River.
Mr Calabro says that he requested that Big River release the North Beach property from Caveat O732768 so as to allow the sale to proceed on the basis that Big River would hold sufficient security, without the necessity to maintain its caveat over the North Beach property.
From the affidavits filed, I understand that although the North Beach Sale Contract was executed on 7 April 2022, the first substantive request made of Big River after entering into the contract was by correspondence issued to the solicitors for Big River in the week prior to settlement. That is, by correspondence dated 28 June 2022, Mr Calabro's solicitors provided Big River's solicitors with a copy of the North Beach Sale Contract and sought the removal of the caveat as against the North Beach property.[4]
[4] See the affidavit of GS Calabro at page 90; affidavit of BB Patane at page 210.
By the application, Mr Calabro did not intend to disturb Caveat O732768 over the Bellevue property. He offered to pay $700,000 of the surplus proceeds of the sale of North Beach property into a joint, interest bearing, trust account, as substitute security to be available to Big River in addition to Big River's charge over the Bellevue property, secured by Caveat O732768 which was to remain undisturbed.
A certificate of urgency was filed with the originating summons seeking an immediate hearing of the application, on notice to Big River.

Form of caveat

When lodging the caveat, Big River identified its interest in the North Beach property and the Bellevue property as an interest held as chargee, grounded upon a charge contained in an agreement made as between Mr Calabro and Big River on 3 December 2013.
However, Caveat O732768 is an absolute caveat, that is, it forbids the registration of any instrument affecting the estate or interest claimed by Big River.

The applicable principles

Under s 137 of the Transfer of Land Act, a person claiming any estate or interest in land under the operation of the Act may lodge a caveat with the Registrar. The purpose of a caveat against dealings is to operate as an injunction to the Registrar to prevent registration of dealings forbidden by the caveat until notice is given to the caveator so that he or she has an opportunity to oppose such registration.[5] Section 137 provides that a caveat may be lodged, in an approved form, 'forbidding the registration of any person as transferee or proprietor of and of any instrument affecting such estate or interest, either absolutely, or until after notice of the intended registration or dealing be given to the caveator, or unless such instrument be expressed to be subject to the claim of the caveator'.
[5] Leros Pty Ltd v Terara Pty Ltd [1992] HCA 22; (1992) 174 CLR 407, 419.
As Mr Calabro applied under s 138, Big River must show cause why the caveat should not be removed: s 138(2) of the Transfer of Land Act.
Similar principles to those on an application for an interlocutory injunction generally apply to the application under the Transfer of Land Act, with the added consideration that the application concerns an interest in land and is governed by the Transfer of Land Act. Further, the principles that apply to an application under s 138(2) of the Transfer of Land Act are the same as those that apply to an application to extend the operation of a caveat under s 138C(2) of that Act.
On the application, the question for determination is whether or not the caveator can demonstrate they may have an interest in land which is capable of supporting a caveat. By its nature, a caveatable interest must be a proprietary interest in land.[6] This requires the interest to be a proprietary interest that is recognised at law or in equity.
[6] Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42, 50.
A caveat is a form of statutory injunction which prevents registration of a dealing against land until the caveator has been given a reasonable opportunity to justify the caveat by pursuing such remedies as they may have.[7]
[7] J and H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546, 552, 558; Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (44 - 45); Brogue Tableau Pty Ltd v Binningup Nominees Pty Ltd [2007] WASCA 179; (2007) 35 WAR 27 [68].
The caveator must satisfy the court that, on the evidence presented to the court, their claim for an interest in the property raises a serious question to be tried or whether it may have substance.[8] Even if a claim may have substance, the caveat might not be extended having regard to factors including the apparent strength or weakness of the caveator's claim.[9] A caveat will not be removed unless the claim to an estate or interest in the land appears to be without foundation.[10]
[8] Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (48 - 50).
[9] KWS Capital Pty Ltd v Love [2013] WASC 294 [32] - [36].
[10] Porter v McDonald [1984] WAR 271, 276; Custom Credit Corp Ltd v Ravi Nominees Pty Ltd (48); Deputy Commissioner of Taxation v Corwest Management Pty Ltd [1978] WAR 129, 141; Mario Casella & Sons Builders Pty Ltd v Duckworth [2005] WASC 245 [26]; Yaran Holdings Pty Ltd v Goldsmith 7 Pty Ltd [2014] WASC 171 [43].
A caveatable interest must exist at the time a caveat is lodged. A caveat cannot be lodged to protect a future interest.[11] The caveat must not go beyond the legitimate claim necessary to protect the rights of the caveator.[12] Removal of the caveat will, in many cases, have the effect of destroying the benefit of the proprietary interest claimed in the caveat.[13]
[11] Martin v Official Trustee in Bankruptcy [1990] Tas R 65, 69; Gangemi v Gangemi [2009] WASC 195 [38] - [45].
[12] Midland Brick Company Pty Ltd v Welsh [2006] WASC 122 [342].
[13] Custom Credit Corp Ltd v Ravi Nominees Pty Ltd (50).
In the exercise of the court's discretion under s 138 of the Transfer of Land Act, the balance of convenience is a relevant factor. There is no rule of law that once an arguable case for a caveatable interest is established, removal of the caveat will only be ordered if it is shown that the 'circumstances are so unusual' that the caveat should be removed. The discretion is to be exercising having regard to the particular circumstances of the case.[14]
[14] Magnolia Private Capital Pty Ltd v Floate [2022] WASC 131 [12]; first defendant's submissions par 65.
I adopt and apply these principles in determining Mr Calabro's application.

Power to amend caveat

As was observed by Le Miere J in Palazzo Homes Pty Ltd v Goh [2010] WASC 407 [7], it is now generally accepted in Australia that the power to make such order as the court considers appropriate, or as to the court seems fit, in dealing with an application to remove a caveat, includes the power to order amendment of the caveat as a condition of its retention.[15]
[15] Le Miere J cited by way of example: Re The Victorian Farmers' Loan and Agency Co Ltd (1897) 22 VLR 629; Queensland Estates Pty Ltd v Co-ownership Land Development Pty Ltd [1969] Qd R 150; Elliott v Blanshard (1970) 17 FLR 7, 11; Midwarren Estates Pty Ltd v Retek & Stivic [1975] VR 575; Kerabee Park Pty Ltd v Daley (1978) 2 NSWLR 222, 229; Veloudos v Young (1981) 56 FLR 182, 186 - 187; Depsun Pty Ltd v Tahore Holdings Pty Ltd (1990) ANZ Conv Rep 334.

Further, his Honour noted that s 138(2) of the Transfer of Land Act provides that on a registered proprietor summoning a caveator to show cause why a caveat should not be removed, the court may make such order as the court or judge may seem fit. The power to make such order as the court may seem fit includes the power to order that the caveat be amended.[16] However, the preponderance of authority in Australia is that the power to make such order as the court considers appropriate, or as to the court seems fit, in dealing with an application to remove a caveat does not empower the court to order an amendment of a caveat which would result in the substitution of a different estate or interest than the estate or interest claimed in the caveat.[17]
[16] Palazzo Homes Pty Ltd v Goh [8], citing Porter v McDonald [1984] WAR 271, 275; Sulinmo Properties Pty Ltd v Malloney (1985) ANZ Conv Rep 25.
[17] Palazzo Homes Pty Ltd v Goh [9] - [11].
As to the exercise of discretion to amend a caveat, Le Miere J at [24] ‑ [25] observed that the court should not readily act in a way which might encourage the belief that caveats can be imprecisely formulated and then fixed up later. Caveats act as a form of interlocutory injunction, albeit by an administrative act, and can have powerful and serious consequences. Wrongly formulated caveats should not easily be tolerated.[18] Further, the court should have regard to the overall merits of the case.
[18] Le Miere J citing Percy & Michele Pty Ltd v Gangemi [2010] VSC 530[104] (Macaulay J).

Parties' submissions

Mr Calabro's position

Counsel for Mr Calabro stated that for the purpose of this proceeding, Mr Calabro does not take issue with the nature of the cavetable interest claimed by Big River, but seeks the court's indulgence to remove the caveat such that the sale can proceed, whilst also satisfying itself that Big River is adequately secured for any judgement debt in CIV 1520 of 2021.[19]
[19] Plaintiff's submissions par 13.
I enquired of counsel and counsel confirmed that in this case it is common ground that on the facts asserted by Big River, the claim that Big River has a caveatable interest in the North Beach property and the Bellevue property has or may have substance.[20] The focus of the submissions advanced on behalf of Mr Calabro was on the balance of convenience.
[20] ts 2 (4 July 2022).
Mr Calabro deposed to holding approximately $2.4 million in equity in the Bellevue property and $1.6 million in the North Beach property.[21] It was his position that should the North Beach caveat be removed, Big River would hold more than adequate security over the Bellevue property to meet any judgment debt ordered in its favour in the proceeding known as CIV 1520 of 2021.
[21] Affidavit of GS Calabro pars 16, 18 - 20; plaintiff's submissions par 11 - 12.
Counsel for Mr Calabro submitted that although Big River would not have its choice of security, it would remain adequately secured, and the security it holds would not be defeated or derogated from.
Counsel also submitted that Mr Calabro and the third party purchaser would suffer substantial prejudice if the caveat were not removed and Mr Calabro was unable to settle on the North Beach property sale on 5 July 2022.
In addition to the security provided by the caveat over the Bellevue property, Mr Calabro had offered to pay $700,000 of the surplus proceeds of the sale of North Beach property into a joint, interest bearing, trust account (in each of the parties' names) on the basis that such moneys not be dealt with pending consent of the parties or an order of the court.[22]
[22] Affidavit of GS Calabro, GSC11.
Counsel submitted that it was for Big River, as caveator, to show that the balance of convenience favoured leaving the caveat in place pending the determination of the proceeding known as CIV 1520 of 2021. Mr Calabro argued that having refused a substitute security, Big River had not demonstrated the balance of convenience and the caveat over the North Beach property must go.

Big River's position

It was Big River's position that Caveat O732768 should remain as against the Bellevue property and the North Beach property, when regard was had to all of the circumstances.

Debt secured by the charge granted by Mr Calabro

On behalf of Big River, it was submitted that:
(a)GN Construction owes Big River a principal debt of about $702,100, the subject of the claim in CIV 1520 of 2021;
(b)a judgment after trial in CIV 1520 of 2021 is unlikely to occur before 1 October 2023, and as at 1 October 2023, interest of about $301,800 will have accrued on that principal debt (ie about $702,100) if the rate of 15% pa (as per the Credit Agreement) is applied;
(c)even as at the filing of the writ of summons commencing CIV 1520 of 2021 (ie 14 June 2021), the combined principal debt and interest thereon at 15% pa was over $755,000;
(d)as at 30 June 2022, Big River had been billed about $87,600 in legal fees;
(e)leaving aside costs incurred in this proceeding, if CIV 1520 of 2021 proceeds to trial, Big River is likely to incur future costs of about $320,000; and
(f)as at 1 October 2023, interest of about $120,700 will have accrued on that principal debt (ie about $702,100) if the rate of 6% pa is used.
In light of the above, counsel submitted that the charge protected by Caveat O732768 secures a debt significantly in excess of $700,000. Indeed, the charge probably secures over $1.4 million. In this context Big River opposed the orders sought by Mr Calabro.
As to the principles which are to be applied in the context of an application made pursuant to s 138(2), counsel accepted that, as observed in Magnolia Private Capital Pty Ltd v Floate at [12]:
Where the caveat is based upon a proprietary interest held by the plaintiff, it is unusual to refuse an order extending a caveat where the plaintiff has demonstrated an arguable case. Where, however, the interest claimed by the caveator is a security interest, the balance of convenience issues may become decisive.
Counsel for Big River noted and accepted that in New South Wales, the court has consistently taken the attitude that where the caveat claims an interest in land as security for the payment of money, if the registered proprietor is prepared to put up an alternative security which is commercially adequate, then the court will remove the caveat even though the caveat may be completely valid.[23] However, counsel submitted that it would be an improper exercise of discretion to order the removal of a caveat where, in the absence of adequate alternative security, the caveator may lose priority in the land the subject of the caveat.[24]
[23] First defendant's submissions par 72, citing Marinkovic v Pat McGrath Engineering Pty Ltd [2004] NSWSC 571; (2004) 61 NSWLR 150 [56]; Renascent Interiors and Refurbishers Pty Ltd v ASEL Property Group Pty Ltd [2002] NSWSC 345; (2002) 10 BPR 19,601 [13] - [15].
[24] First defendant's submissions par 73, citing the passage from Kingstone Constructions Pty Ltd v Cripel Pty Ltd (1991) 5 BPR 11,987 quoted in Manttan v Equititrust Ltd [2010] NSWSC 931 [33]. See also Business Acquisitions Australia Pty Ltd v Renshall [2006] NSWSC 1238; (2006) 12 BPR 23,873 [34].
Counsel also made the following observations. First, s 138(2) of the Transfer of Land Act is cast in discretionary terms.
Secondly, it seems that the NAB mortgage over the Bellevue property secures two loan facilities. It cannot be discerned from the documents whether or not those facilities relate to a fixed 'once and for all' loan, a 'come & go' facility or a fluctuating line of credit. It was submitted that whatever may be the indebtedness of Mr Calabro to NAB under those facilities at any particular point of time does not tell the full story with respect to the safety of Big River's position if Big River were to surrender the North Beach property as security.
Thirdly, there was no valuation evidence in respect of the Bellevue property before the court.
Fourthly, the mere fact that Caveat O732768 is the only caveat lodged against the Bellevue property does not mean that there are no other creditors with the benefit of charging clauses in respect of that property. Counsel noted that despite such matters being raised in correspondence on 1 October 2021, Mr Calabro has not sworn that no competing charges exist, and the court should draw a Jones v Dunkel inference against Mr Calabro in relation to the same.[25] In this regard, counsel submitted that a Jones v Dunkel inference may be drawn in a matter conducted on affidavit,[26] or on an interlocutory application.[27]
[25] Jones v Dunkel (1959) 101 CLR 598.
[26] Rae v Olney (Unreported, WASC, Library No 960669, 22 November 1996) 10.
[27] Schmidt v Won [1997] VSC 24; [1998] 3 VR 435, 457, which was an application for pre-action discovery and which the Court of Appeal regarded as interlocutory rather than final.
Fifthly, the assertion that there is about $2.4 million in equity in the Bellevue property is pure speculation.
As to the applicable principles, counsel for Big River further submitted that even though the exercise of the statutory discretion may not be subject to restrictions which are applicable to the exercise of the discretion to grant or withhold an interlocutory injunction, it does not necessarily follow that the court does not, in the exercise of its statutory discretion, have regard to notions of bad faith, unconscionable conduct, delay and the like.[28] In this regard, counsel for Big River submitted as follows.
[28] First defendant's submissions par 77, citing Paringawood Nominees Pty Ltd v Baulderstone [1999] SASC 380 [18].
First, Mr Calabro effectively seeks summary judgment on Monday, 4 July 2022 so that he can comply with special condition B of the North Beach Sale Contract and thereby settle on the North Beach Sale Contract on Tuesday, 5 July 2022. This is not a fit case for summary judgment.
Secondly, Mr Calabro has unreasonably delayed in seeking relief from this court. Any application to remove Caveat O732768 as against the North Beach property should have been made by Mr Calabro before he entered into the North Beach Sale Contract on 7 April 2022. In the alternative, Mr Calabro should have made such an application promptly thereafter.
Thirdly, where a party seeks interlocutory relief in equity pending the final determination of a proceeding, that party must move promptly for that relief. Equity assists the diligent, not the tardy.[29] Delay is a discretionary basis on which interlocutory relief may be refused.[30]
[29] See Romanous v Saleh [2008] NSWSC 656 [20]
[30] See DP World Sydney Ltd v Guy [2016] NSWSC 1072; (2016) 262 IR 156 [67] - [76].
Fourthly, the letter dated 1 October 2021 from Big River's solicitors to Mr Calabro's solicitors,[31] sets out the basis of Big River's resistance to the orders sought by Mr Calabro in the originating summons.
[31] Affidavit of GS Calabro at pages 27 - 33; affidavit of BB Patane at pages 157 - 163.
Fifthly, the letter dated 28 June 2022 from Mr Calabro's solicitors refers to the 1 October 2021 letter from Big River's solicitors but does not provide any explanation for:
(1) the lack of a response to the letter dated 1 October 2021;
(2) the reason why the North Beach Sale Contract was entered into despite the existence of Caveat O732768 and CIV 1520 of 2021; or
(3) why the matter was being reagitated only one week before the settlement date under the North Beach Sale Contract.

Disposition

Application made on behalf of Mr Calabro at the conclusion of the hearing

Before the hearing had concluded, but after counsel for Big River had concluded his oral submissions in opposition to the application, counsel for Mr Calabro made an oral application to adjourn the hearing part heard. He sought an adjournment to facilitate the making of a further affidavit in support of the application, which was to attach a valuation of the Bellevue property in the amount of $6 million, which counsel said he had been received during the course of the hearing.[32] Counsel for Mr Calabro submitted that in all of the circumstances, Mr Calabro would suffer significant prejudice if not afforded the requested adjournment and if leave was not granted for Mr Calabro to adduce further evidence in the application.
[32] ts 30 (4 July 2022).
Counsel for Big River opposed the application on the grounds of fairness. I understood counsel for Big River to complain that the parties had been heard on the basis of materials filed in advance of the hearing in circumstances where Mr Calabro had brought on this application with little notice. Counsel submitted that as Big River had not had an opportunity to see the valuation or obtain their own valuation, counsel would not be in a position to deal with the application on behalf of Big River that afternoon (as was pressed on behalf of Mr Calabro). It was submitted that if the requested adjournment were granted, the application would need to be adjourned for sufficient time as to allow Big River an opportunity to obtain its own valuation (that is, to a date after the proposed settlement of the North Beach property), and it was foreshadowed that counsel may also apply for leave to cross‑examine the valuer engaged by Mr Calabro.[33]
[33] ts 31 (4 July 2022).
In refusing Mr Calabro's application, I took into account the lateness of the application for adjournment, in the context of what was a late application for substantive relief. The evidence reveals that Mr Calabro had withdrawn from negotiations with Big River in early October 2021, not responding to a letter issued on 1 October 2021 from Big River's solicitors which set out the basis of Big River's resistance to the orders sought in this proceeding; despite no agreement having been reached, Mr Calabro had entered into the North Beach Sale Contract in April 2022 on terms which required removal of Caveat O732768 prior to settlement; had delayed in engaging with Big River in relation to the removal of the caveat until the week prior to settlement; had delayed in bring this application until two business days prior to settlement; and had delayed in instructing a valuer to give evidence of valuation.
The application was listed with urgency at the request of Mr Calabro, in circumstances where he entered into a contract to sell the North Beach property in April 2022 free from the encumbrance of Caveat O732768, but delayed making this application Friday, 1 July 2022 (that is, within two business days of settlement). There was no explanation proffered in the affidavit of Mr Calabro as to why the valuation had not been sought earlier, nor any explanation proffered for having delayed in bringing the application under s 138, in a context where the North Beach Sale Contract had been executed in April of this year.
The grant of the requested adjournment until the afternoon of 4 July 2022 with leave to read a further affidavit would have significantly curtailed Big River's opportunity to respond to the valuation evidence. Further, as explained below, particularly by reference to the matters discussed at [87] to [95], a valuation of the Bellevue property in the amount of $6 million would not have resolved the application in Mr Calabro's favour. Having had regard to all of the circumstances, the application to adjourn was refused.[34]

Should the caveat be removed?

[34] ts 32 (4 July 2022).

In all of the circumstances, albeit finely balanced, I was satisfied that Big River had shown cause why Caveat O732768 lodged on 13 May 2021 as against the North Beach Property should not be removed.
I weighed in the balance the following matters.
First, this was not a case where the question of whether the caveator's claim to an estate or interest in the land was in issue. Counsel for Mr Calabro made plain that for the purpose of this proceeding, Mr Calabro did not take issue with the nature of the interest claimed by Big River in the North Beach property.
I proceeded on the basis that the existence of a caveatable interest had been demonstrated and was conceded, such that the removal of Caveat O732768 over the North Beach property would have had the effect of destroying the benefit of Big River's proprietary interest in it. The removal was intended to facilitate transfer of the North Beach property to a third party free from any practical obligation to account to Big River for the proceeds of sale.
Further, on the materials before me, while I made no finding as to the matters in issue in the proceeding known as CIV 1520 of 2021, I was satisfied that the claim as against Mr Calabro prosecuted by Big River by that proceeding was prima facie arguable.
Secondly, I was satisfied that the amount informally proffered from the sale of the North Beach property to be held in trust ($700,000) was less than the amount which Mr Calabro may be liable to pay Big River under the Guarantee. I understood Big River's position to be that by the time the proceeding known as CIV 1520 of 2021 is likely to be determined, the amount owed by Mr Calabro and secured by Caveat O732768 is likely to be approximately $1.3 million, and I proceeded on that basis.
I also noted that while no settlement statement was put into evidence, Mr Calabro deposed that his anticipated equity in the North Beach property was about $1.6 million after payment of the ANZ mortgage.[35] The concession made by Mr Calabro was that from the remaining proceeds of the sale after repayment of the ANZ mortgage, he was prepared to hold the amount of $700,000 in a joint, interest bearing trust account, which could be available to Big River in addition to the charge over the Bellevue property.
[35] Affidavit of GS Calabro par 31.
Mr Patane deposed to and gave particulars of the amount that Big River said it was entitled to seek for security pending the outcome of the Supreme Court proceeding known as CIV 1520 of 2021, being $1,299,786.11.
Mr Patane, as the solicitor with conduct of the proceeding known as CIV 1520 of 2021 for Big River, deposed to a calculation of interest as 15% (under the terms of the Credit Agreement) or 6% (under the Supreme Court Act 1935 (WA)).[36] He also deposed to the costs incurred and invoiced to-date and likely reasonable costs going forward to judgment.[37] I was satisfied on the evidence before me that a calculation based on an assumption that the trial would proceed by October 2023 was reasonable.
[36] Affidavit of BB Patane pars 46 - 50.
[37] Affidavit of BB Patane pars 51 - 53.
I understood counsel for Mr Calabro to submit that the amounts sought to be protected or secured on behalf of Big River were excessive.[38] However, I understood that submission to be largely referrable to the rate of interest of 15% under the Credit Agreement, not of the 6% under the Supreme Court Act. I did not understand there to be any substantive challenge to the estimate of costs provided and particularised in Mr Patane's affidavit.
[38] ts 6 (4 July 2022).
As to the rate of interest, I considered it appropriate to determine this application having regard to the higher rate. It would not be appropriate in this context to make any finding that the higher rate was not recoverable from Mr Calabro in the proceeding known as CIV 1520 of 2021. Nor did I consider the claim for interest at the rate of 15% under the Credit Agreement to be so weak as to warrant not having regard to the same.
Thirdly, no valuation evidence as to the Bellevue property was before the court.
Fourthly, the Bellevue property was the subject of a first‑ranking security held by NAB.
Mr Calabro attached to his affidavit a letter sent from his solicitors to those of Big River on 17 September 2021 (attachment GSC5). At pars 16 and 18 of his affidavit, Mr Calabro deposed as follows:
[16]In essence, I sought in that correspondence, Big River's indulgence in removing their caveat over North Beach as I wished to put that property to market and I believed there was adequate equity in Bellevue to meet any judgement debt that may be handed down on these proceedings. That letter attached an appraisal of the value of Bellevue for "around the $6,000,000 mark'' along with other documentation establishing a mortgage registered over the property securing a loan facility agreement with a credit limit of $3.6m and current account statements for the loan accounts totalling $3,594,000.00.
…
[18]As at the date of swearing this affidavit the Equity in Bellevue substantially remains as referred to in paragraph 16.

Mr Calabro also attached to his affidavit a copy of portfolio status report for the sub‑accounts with a total portfolio limit of $3.6 million (attachment GSC7). The portfolio status report reveals the sub-accounts to have been fully drawn as at 31 May 2022.
There is evidence that the portfolio limit was originally $4.4 million, but had been gradually reduced by the NAB to a limit of $3.6 million following a decease in value of the Bellevue property.[39]
[39] Affidavit of BB Patane BBP-12, page 131 (email communication from Mr Rocco Betti of NAB to Mr M Vallve of Vallve Legal).
I was particularly cognisant of the lack of evidence of there being any limit to the amount recoverable by the NAB pursuant to its first ranking security over the Bellevue property in the disposition of this application. A copy of the mortgage registered in favour of the NAB was attached to the affidavit of Mr Patane at pages 120 ‑ 125.[40] It records that the memorandum of provisions No. L659783 filed and registered at Western Australian Land Information Authority is incorporated in and forms part of the mortgage, and the parties to the mortgage are bound by the terms of the memorandum as if it was set out in full in the mortgage. The memorandum was not however in evidence before the court.
[40] Affidavit of BB Patane, BBP-12.
In the absence of the relevant mortgage conditions, or any evidence of an express cap, it cannot be assumed that NAB's security is limited to recovery of $3.6 million (that is, an amount equivalent to the portfolio limit). It would be unusual for NAB, in the absence of an agreed cap, not to have the right to recover interest accrued, enforcement costs and other costs and disbursements in addition to moneys advanced under a fully drawn facility.
While counsel for Mr Calabro from the bar table informed the court that the valuation of the Bellevue property was $6 million, admission into evidence of a valuation in that amount would not have been determinative of the application. In this regard, the lack of evidence of there being any limit to the first ranking security held by NAB over the Bellevue property weighed heavily in the balance.
Fifthly, I had regard to the submission made on behalf of Big River concerning other potential equitable interests in the Bellevue property. Counsel had drawn my attention to there being no evidence before the court that no competing equitable interest (that is, no unregistered equitable charge) had been granted by Mr Calabro over the Bellevue property, despite Big River having sought confirmation of the same from Mr Calabro. Big River sought that I draw a Jones v Dunkel inference against Mr Calabro in relation to the same.
In the disposition of the matter, I weighed in the balance that there may be competing equitable interests, and the registration of Caveat O732768 in favour of Big River may not be determinative of its priority to equity in the Bellevue property, after discharge of NAB's first ranking registered mortgage.[41] Again, while I weighed this in the balance, it was not in isolation a matter determinative of the substantive application.
[41] Bunnings Group Ltd v Hanson Constructions Materials Pty Ltd [2017] WASC 132, as applied in CIFG (Australia) Pty Ltd v Perna [2020] VSC 630 [108] - [111] and LTDC Pty Ltd v Cashflow Finance Australia Pty Ltd [2019] NSWSC 150 [40].
Sixthly, Mr Calabro entered into the North Beach Sale Contract in circumstances where he knew that Big River had not agreed to remove Caveat O732768. He did so despite there having been substantive correspondence in relation to the same and without resolution of matters of contention between the parties having been reached. The evidence makes plain that alternative security proposals made by Mr Calabro had been met by requests for additional information and there had been no agreement in relation to the same.
Further, Mr Calabro did not cause a notice to be issued to Big River pursuant to s 138B of the Transfer of Land Act in advance of settlement under the North Beach Sale Contract. Indeed, Mr Calabro disclaimed knowledge of his representatives having issued correspondence to Big River in April of this year.[42]
[42] Affidavit of GS Calabro par 25.
While delay on the part of Mr Calabro was not determinative of the application, I note that by his inaction, Mr Calabro appeared to have assumed risk for being unable to complete the sale of the North Beach property without encumbrance.
Finally, I weighed in the balance the prejudice that will be suffered by allowing Caveat O732768 to remain over the North Beach property, which weighed heavily against the continuation of the caveat.
Having weighed these matters in the balance, on the evidence before me, Big River had shown cause why its caveat over the North Beach property ought not be removed, in circumstances where a caveatable interest had been demonstrated and conceded, and where removal of Caveat O732768 over the North Beach property would have had the effect of destroying the benefit of Big River's proprietary interest in it. Particularly in light of the fourth and fifth matters discussed above, I was not satisfied that the alternative security proffered by Mr Calabro was commercially adequate, so as to justify the court removing Caveat O732768.

Form of the caveat

At the hearing of the application it was common ground that the absolute caveat lodged by Big River went beyond the legitimate claim necessary to protect its rights and that Caveat O732768 should be expressed to operate only to protect Big River's rights as equitable chargee.[43] That is, Big River should have lodged a subject to claim caveat, not an absolute caveat.
[43] ts 14, 35 (4 July 2022).
It was for that reason that during the course of the hearing, I indicated that the continued operation of Caveat O732768 would be conditional upon it being amended, and Big River moved to so amend its caveat.[44]

Undertaking as to damages

[44] ts 35 (4 July 2022).

I determined that Big River ought not be relieved from its obligation to give an undertaking as to damages. At the conclusion of the hearing, Big River provided the same, and the orders made were subject to that undertaking.

Conclusion and orders

For these reasons, I was satisfed that Big River had shown cause why its caveat over the North Beach property ought not be removed. Further, I made an order that Caveat O732768 be amended on the first page thereof by deleting the word 'Absolute' and replacing that word with 'Subject to the Caveator's claim'.
As to the question of costs, there were no circumstances before me that warranted a departure from the usual rule that costs follow the event. After hearing counsel, I ordered that Mr Calabro pay Big River's costs of the originating summons on a party/party basis to be taxed if not agreed.

Sch A – Big River's submissions, pt B, 'Chronology'.

5. On 29 April 1999, Amfem Nominees Pty Ltd (Amfem P/L) was registered as a company. See Mr Patane's Affidavit at page 83.
6. On 13 December 2005, Coppertime Holdings Pty Ltd (Coppertime P/L) was registered as a company, with Mr Calabro as the sole director of Coppertime P/L. See Mr Patane's Affidavit at pages 37 - 38.
7. On 30 June 2011, GN Construction (Aust) Pty Ltd (GNC P/L) was registered as a company. See Mr Patane's Affidavit at page 18.
8. On 30 June 2011, Mr Calabro became a director of GNC P/L. See Mr Patane's Affidavit at page 19.
9. On 19 October 2012, Mr Calabro became the registered proprietor of the West Perth Apartment, subject to a first registered mortgage (NAB Mortgage) in favour of National Australia Bank Ltd (NAB). See Mr Calabro's Affidavit at page 24; Mr Patane's Affidavit at pages 120 - 125.
10. On 3 September 2013, Ferdinando Luigi Spera (Mr Spera) became a director of GNC P/L. See Mr Patane's Affidavit at page 19.
11. On 3 December 2013, Big River and GNC P/L entered into a written agreement (Credit Agreement), which set out the terms on which Big River would supply goods and/or services to GNC P/L on credit. See Mr Calabro's Affidavit at page 8 [4], page 10 [7] & page 17 [1]. A copy of the Credit Agreement appears at pages 27 - 31 of Mr Patane's Affidavit.
12. By the Credit Agreement:
(1) Big River was entitled to charge interest on all moneys owing by GNC P/L to Big River at the rate of 15% per annum; &
(2) GNC P/L promised to pay Big River's costs, on an indemnity basis, of taking enforcement action in respect of the Credit Agreement. See clause 1 (g) on page 28 of Mr Patane's Affidavit, clauses 1, 2, 4(d), 6, 8, 12 & 13 on page 29 of Mr Patane's Affidavit and clauses 48 & 49 on page 30 of Mr Patane's Affidavit.

13. On 3 December 2013, Mr Calabro executed a written guarantee and indemnity (Guarantee) in favour of Big River in respect of GNC P/L's obligations to Big River under the Credit Agreement. See Mr Patane's Affidavit at pages 32 - 33.
14. By the Guarantee:
(1) Mr Calabro guaranteed the obligations of GNC P/L to Big River under the Credit Agreement;
(2) Mr Calabro promised to pay Big River's costs, on an indemnity basis, of taking enforcement action in respect of the Guarantee; &
(3) Mr Calabro charged in favour of Big River all of Mr Calabro's right, title and interest in any real property that Mr Calabro then owned or might own in the future, with all the indebtedness of Mr Calabro to Big River under the Guarantee (and thereby GNC P/L's indebtedness to Big River under the Credit Agreement). See clauses 1 - 4, 13, 14, 19 & 20 of the Guarantee on page 32 of Mr Patane's Affidavit.

15. On 4 January 2017, Coppertime P/L became the registered proprietor of the parcel of land (Balcatta Unit) commonly known as Unit 1, 13 Mumford Place, Balcatta, subject to a first registered mortgage in favour of NAB. See Mr Patane's Affidavit at page 46.
16. On 4 July 2017, Moffat Pty Ltd lodged a caveat (Moffat Caveat) in respect of the Balcatta Unit. See Mr Patane's Affidavit at pages 46 & 78 - 81.
17. On 7 October 2020, Mr Calabro became the sole director of Amfem P/L. See Mr Patane's Affidavit at page 84. Mr Calabro holds all of the issued shares in Amfem P/L. See Mr Patane's Affidavit at page 84.
18. On 12 October 2020, Mr Calabro became the registered proprietor of the North Beach Property, subject to a first registered mortgage (ANZ Mortgage) in favour of Australia & New Zealand Banking Group Ltd (ANZ Bank). See Mr Calabro's Affidavit at page 23; Mr Patane's Affidavit at page 22.
19. On 13 May 2021, Big River lodged the Subject Caveat against the West Perth Apartment and the North Beach Property. See Mr Calabro's Affidavit at pages 23, 24 & 98 - 103; Mr Patane's Affidavit at pages 22, 23 & 25. A copy of the Subject Caveat is at pages 98 - 99 of Mr Calabro's Affidavit and pages 197 - 202 & 240 - 246 of Mr Patane's Affidavit.
20. On 14 June 2021, Big River (as plaintiff) commenced Supreme Court of Western Australia Action CIV 1520 of 2021 (CIV 1520/2021) against GNC P/L (as 1st defendant) and Mr Calabro (as 2nd defendant) by filing a writ of summons. See Mr Calabro's Affidavit at para 5; Mr Patane's Affidavit at pages 260 - 263.
21. On 14 June 2021, Big River filed a statement of claim (SOC) in CIV 1520 of 2021. See Mr Patane's Affidavit at pages 266 - 273. Note the relief claimed against GNC P/L at pages 272 - 273 of Mr Patane's and the relief claimed against Mr Calabro at page 273 of Mr Patane's Affidavit. In substance, Big River seeks, as against:
(1) GNC P/L: $702,100 plus 15% per annum interest thereon and indemnity costs against; and
(2) Mr Calabro: orders for the sale of the West Perth Apartment and the North Beach Property so as to recover the amounts referred to in sub-para (1) above.

22. On 16 June 2021, Mr Spera ceased to be a director of GNC P/L. See Mr Patane's Affidavit at page 19.
23. On 30 July 2021, Mr Calabro's solicitors sent a letter to Big River's solicitors seeking Big River's consent to the removal of the Subject Caveat as against the West Perth Apartment and the North Beach Property and the substitution of a caveat against the Balcatta Unit. See Mr Patane's Affidavit at page 35.
24. On 6 August 2021, Big River's solicitors sent a detailed response to the 30 July 2021 letter from Mr Calabro's solicitors, which response declined (for the reasons set out therein) Mr Calabro's request to substitute a caveat against the Balcatta Unit in place of the Subject Caveat (as against the West Perth Apartment and the North Beach Property). See Mr Patane's Affidavit at pages 58 - 60.
25. On 10 August 2021, Registrar Griffin made programming orders in CIV 1520 of 2021. See Mr Patane's Affidavit at pages 284 ‑ 287.
26. On 13 August 2021, Mr Calabro's solicitors sent a letter to Big River's solicitors which provided further information about the Balcatta Unit and the encumbrances thereon (eg the Moffat Caveat protects a lease). See Mr Patane's Affidavit at pages 62 ‑ 63.
27. On 16 August 2021, Big River's solicitors sent an email to Mr Calabro's solicitors seeking copies of the:
(1) trust deed referred to in para 7 of the 13 August 2021 letter from Mr Calabro's solicitors (see Mr Patane's Affidavit at pages 62 - 63); &
(2) lease granted by Coppertime P/L the subject of the Moffat Caveat. See Mr Patane's Affidavit at page 93.

28. On 20 August 2021, Big River's solicitors sent another email to Mr Calabro's solicitors seeking copies of the:
(1) trust deed referred to in para 7 of the 13 August 2021 letter from Mr Calabro's solicitors (see Mr Patane's Affidavit at pages 62 - 63); &
(2) lease granted by Coppertime P/L the subject of the Moffat Caveat. See Mr Patane's Affidavit at page 98.

29. On 27 August 2021, GNC P/L & Mr Calabro filed a counterclaim against Big River in CIV 1520 of 2021. See Mr Calabro's Affidavit at page 20 [9] - [11] & pages 21 - 22; Mr Patane's Affidavit at pages 276 - 281. Note in particular SOC paras 16 & 17 on page 272 of Mr Patane's Affidavit and prayer B on page 281 of Mr Patane's Affidavit (ie that the Subject Caveat be withdrawn - ie in respect of both the West Perth Apartment & the North Beach Property).
30. On 3 September 2021, Mr Calabro's solicitors sent an email to Big River's solicitors which declined to provide copies of the:
(1)trust deed referred to in para 7 of the 13 August 2021 letter from Mr Calabro's solicitors (see Mr Patane's Affidavit at pages 62 - 63); &
(2) lease granted by Coppertime P/L the subject of the Moffat Caveat. See Mr Patane's Affidavit at page 103.

31. On 10 September 2021, Big River's solicitors sent an email to Mr Calabro's solicitors which explained the basis for requesting a copy of the trust deed referred to in para 7 of the 13 August 2021 letter from Mr Calabro's solicitors (see Mr Patane's Affidavit at pages 62 - 63). See Mr Patane's Affidavit at page 109.
32. On 17 September 2021, Mr Calabro's solicitors gave notice that Mr Calabro wished to put the North Beach Property on the market and requested Big River to withdraw the Subject Caveat as against the North Beach Property. See Mr Calabro's Affidavit at pages 25 - 26 & pages 34 - 66; Mr Patane's Affidavit at pages 117 - 118.
33. On 20 September 2021, Big River's solicitors sent an email to Mr Calabro's solicitors seeking further details in respect of the 17 September 2021 letter from Mr Calabro's solicitors. See Mr Patane's Affidavit at page 152.
34. On 20 September 2021, Mr Calabro's solicitors sent an email to Big River's solicitors in response to the 20 September 2021 email from Big River's solicitors. See Mr Patane's Affidavit at page 154. 35. On 24 September 2021, Big River filed a reply and defence to counterclaim in CIV 1520 of 2021. See Mr Patane's Affidavit at pages 282 - 283.
36. On 1 October 2021, Big River's solicitors sent a detailed response to the 17 September 2021 letter from Mr Calabro's solicitors. See Mr Calabro's Affidavit at pages 27 - 33; Mr Patane's Affidavit at pages 157 - 163.
37. On 7 April 2022, Mr Calabro (as vendor) and Marc Leib (as purchaser) entered into a contract of sale (North Beach Sale Contract) in respect of the North Beach Property. See Mr Calabro's Affidavit at pages 68 - 89; Mr Patane's Affidavit at pages 211 - 231. The North Beach Sale Contract provides for a $4.05M purchase price with settlement to take place on 5 July 2022. Note special condition B on page 68 of Mr Calabro's Affidavit and page 211 of Mr Patane's Affidavit: The Buyer has been made aware of and accepts [the Subject Caveat] is on the title and will be removed prior to settlement.
38. On 14 April 2022, CS Legal sent a letter to Big River's solicitors seeking a pay out figure for withdrawal of the Subject Caveat as against the North Beach Property. See Mr Calabro's Affidavit at page 97; Mr Patane's Affidavit at page 239. Mr Calabro says that he was not aware of this letter. See Mr Calabro's Affidavit at para 25.
39. On 19 April 2022, Big River's solicitors sent an email to CS Legal in response to the 14 April 2022 letter from CS Legal. See Mr Calabro's Affidavit at page 105; Mr Patane's Affidavit at page 204.
40. On 20 April 2022, Registrar Griffin made programming orders in CIV 1520 of 2021. See Mr Patane's Affidavit at pages 288 ‑ 289.
41. On 22 April 2022, CS Legal sent an email to Big River's solicitors which stated that CS Legal were 'still endeavouring to contact our client and will respond as soon as possible'. See Mr Calabro's Affidavit at page 107; Mr Patane's Affidavit at pages 206 & 249.
42. On 3 June 2022, Registrar Griffin made orders in CIV 1520 of 2021 which inter alia provide for a case management hearing on 26 January 2023. See Mr Patane's Affidavit at pages 290 - 293.
43. On 5 June 2022, Mr Spera again became a director of GNC P/L. See Mr Patane's Affidavit at page 19.
44. There are 20 ordinary shares in GNC P/L. Mr Calabro hold 10 of those shares and Mr Spera holds 10 of those shares. See Mr Patane's Affidavit at pages 19 - 20.
45. On 28 June 2022, Mr Calabro's solicitors provided Big River's solicitors with a copy of the North Beach Sale Contract and sought the removal of the Subject Caveat as against the North Beach Property. See Mr Calabro's Affidavit at page 90; Mr Patane's Affidavit at page 210.
46. On 30 June 2022, Big River's solicitors sent a detailed response to the 28 June 2022 letter from Mr Calabro's solicitors. See Mr Calabro's Affidavit at pages 91 - 96; Mr Patane's Affidavit at pages 233 - 238.
47. On 30 June 2022, Mr Calabro's solicitors sent Big River's solicitors a letter responding to the 30 June 2022 letter from Big River's solicitors. See Mr Calabro's Affidavit at page 108; Mr Patane's Affidavit at page 250. Note the offer of Mr Calabro to pay $700,000 out of the proceeds of sale of the North Beach Property into an interest-bearing account.
48. On 1 July 2022, Big River's solicitors sent a detailed response to the 30 June 2022 letter from Mr Calabro's solicitors. See Mr Patane's Affidavit at pages 254 - 256.
49. At 3.55 pm on 1 July 2022, Mr Calabro's solicitors sent an email to Big River's solicitors which referred to the filing of proceedings 'this afternoon' for the removal of the Subject Caveat as against the North Beach Property and the attempt to 'have a hearing listed for Monday'. See Mr Patane's Affidavit at page 252.
50. On 1 July 2022, Mr Calabro commenced this proceeding.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AI
Associate to the Honourable Justice Strk

28 JULY 2022