Calabro v Big River Pty Ltd

Case [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

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AGLC
Calabro v Big River Pty Ltd [2022] WASC 242
Case
[2022] WASC 242
Decision Date

CaseChat Overview and Summary

In Calabro v Big River Pty Ltd, the applicant, Mr Calabro, sought the removal of a caveat lodged over a property in his name. The respondents, Big River Pty Ltd and Mr Iacono, were the caveators. The dispute centred on whether the respondents had shown cause for the caveat to remain and whether the court could order an amendment to the caveat as a condition for its retention. The case was heard in the Supreme Court of Western Australia.

The primary legal issue before the court was whether the respondents had demonstrated a sufficient basis for their claim to an interest in the property, necessitating the retention of the caveat. The court also had to consider whether it had the discretion to order an amendment to the caveat as a condition for its retention, without altering the nature of the claimed interest. The court applied established principles from previous cases, focusing on whether the respondents' claim raised a serious question to be tried or had substance, and whether the caveat should be removed if the claim appeared to be without foundation.

The court found that the respondents had not established a serious question to be tried or a claim with substance. The evidence presented did not support the assertion of a caveatable interest in the property. Furthermore, the court determined that it could not order an amendment to the caveat that would change the nature of the claimed interest. This decision aligned with the prevailing authority that the power to order an amendment does not extend to altering the estate or interest claimed in the caveat.

The court ordered the removal of the caveat, with no order for amendment, as the respondents had not shown cause for its retention. The court's decision was grounded in the requirement for a caveatable interest to exist at the time of lodging and the principle that a caveat cannot be used to protect a future interest. The balance of convenience was also considered, but the respondents' claim did not justify the continuation of the caveat.

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 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. 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].