Chan v Batemans [No 2] - [2011] WASC 111

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: CHAN -v- BATEMANS [No 2] [2011] WASC 111

CORAM: SIMMONDS J

HEARD: 7 & 13 APRIL 2011

DELIVERED : 13 APRIL 2011

PUBLISHED : 29 APRIL 2011

FILE NO/S: CIV 1776 of 2008

BETWEEN: KHENG SU CHAN
Plaintiff
AND
BATEMANS
Defendant

Catchwords:

Enforcement of judgments - Property (seizure and sale) orders - Sales under such orders by sheriff's dealings

Practice and procedure - Injunctions - Interim injunctions - When applications made ex parte for such injunctions may be heard - Interlocutory injunctions - Applicable principles

Legislation:

Civil Judgments Enforcement Act 2004 (WA), s 15, s 62, s 69, s 102, s 103
Rules of the Supreme Court 1971 (WA), O 52 r 1, O 52 r 2
Transfer of Land Act 1893 (WA), s 68, s 133, s 138B, s 138D

Result:

Application for interim injunction dismissed

Category: B

Representation:

Counsel:

Plaintiff: In person
Defendant: No appearance

Solicitors:

Plaintiff: In person
Defendant: No appearance

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

Chan v Batemans [2009] WASC 177
Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110

SIMMONDS J:
(These reasons were delivered extemporaneously and have been edited from the transcript.)

Introduction

This is an application for an interim injunction to restrain Landgate (Landgate) from registering a transfer of a residential unit in Mount Street, Perth. The transfer is purportedly pursuant to a sale which is itself purportedly pursuant to a property (seizure and sale) order registered against the title to the unit (the PSSO) and made under the Civil Judgments Enforcement Act 2004 (WA).
The PSSO is in respect of a judgment obtained against the applicant by her former solicitors for unpaid costs. The applicant said strongly in respect of that judgment, as she did in respect of a number of other matters of a factual kind to which I will come, that she took strong objection to the matters in question, and had considered or was taking appropriate action to have those matters set aside. I do not mean, in referring to those matters, to be indicating that it was inappropriate for her to do so, or that I have arrived at anything in the nature of a view about the action she has taken in respect of those matters. It is important, however, that I record those matters, as I do, as background to the present application.
The applicant is self‑represented and as she was before me at the first hearing of this application, on 7 April, also. The applicant does have a solicitor and the applicant's solicitor has indeed been involved in matters related to the present application and corresponded with the applicant in relation to the present application. It is my understanding that the applicant's solicitor was present in court today for part of the hearing. However, the applicant's solicitor did not appear for the applicant and did not seek to go on to the record in respect of the present matter.
The fact that the applicant was self-represented at both hearings of the present application may go some distance to indicating why the basis and background for her application are not easy to extract from the only evidence before me in support of the application, an affidavit of hers sworn 6 April 2011. Another such indication is that the application was made for an interim injunction; that is to say, ex parte.
When the matter first came before me on 7 April 2011, and after a lengthy hearing in the afternoon of that day, I concluded that I should adjourn the hearing to 13 April 2011, today's date. The applicant took the opportunity presented by that adjournment to obtain additional information which she believed to be relevant to her application from a number of sources. Some of that information was in documentary form, notably, information she obtained from Landgate. Some of that information was information she obtained in telephone conversations she had with the Magistrates Court of Western Australia and with certain real estate entities to which she referred. None of this additional information was, however, the subject of an affidavit, whether by way of deposition in such an affidavit or annexure to such an affidavit.
The difficulty for me, of which I reminded her during the hearing today, 13 April 2011, was that the material could at most only be used by me to assist me in understanding what is in the only evidence properly before me, namely the applicant's affidavit of 6 April 2011 to which I have already referred.
The applicant also referred me today to other matters in this court than CIV 1776 of 2008, being the matter in which the present application for an interim injunction is brought. Those other matters were two. They were CIV 3168 of 2009 and CIV 1167 of 2010. The files were produced to me and examined by me for the same reason that I looked at the documents the applicant obtained I have previously referred to and heard from the applicant about conversations she had had with the Magistrates Court of Western Australia and certain real estate entities. That is, I considered that material for what light it might cast on material properly before me in the applicant's affidavit of 6 April 2011.
In the event, I derived assistance of the kind I have referred to from the documentary material the applicant obtained from Landgate and from the conversation to which the applicant referred me that she had had with certain real estate entities.
I did not derive, for the purposes of the present application before me, great assistance from anything in the two CIV files to which I have referred. I note that in both the applicant was also self represented, in both Martin CJ was the presiding judicial officer and in both there were both transcript of a hearing in each matter before his Honour and also a draft judgment by his Honour, delivered extemporaneously at the conclusion of the hearing. In both cases his Honour dismissed the applications in the matters. In both of those matters, those applications had been brought by the applicant before me today, Dr Chan. However, to repeat, the assistance I was able to derive from those two matters was of a very limited character.
I conclude this introduction by saying that, doing the best I can, I have been able to arrive at the statement of background which I will shortly describe before I review the law applicable to the applicant's application before me. I will then apply that law, indicating however that there is no need, in my view, to reach a final conclusion on much of that law. I turn then to the background.

Background

I begin by saying something about the file CIV 1776 of 2008 in which the present application is brought so far as that file concerns matters before the present application was brought.
CIV 1776 of 2008 was begun by an originating motion filed on 30 June 2008. By that originating motion, the applicant before me sought review of costs agreements between herself and her former solicitors Batemans. It would appear that Batemans is or was a firm of solicitors of which the principal was Malcolm James Bateman. Mr Bateman's name appears in other proceedings involving Dr Chan on its own, without reference to the firm name Batemans.
The matter begun by the originating motion filed 30 June 2008 eventually proceeded to trial on 4 and 5 February 2009. For reasons delivered on 23 June 2009 - reasons which his Honour the Chief Justice appears to have had described to him in the hearing in CIV 1167 of 2010 as a decision delivered in May 2009 but which, as I have indicated, was delivered in fact, on the material in the file, on 23 June 2009 Master Sanderson stated that he would dismiss the application, which he understood as one to have the relevant costs agreements cancelled. His reasons appear as Chan v Batemans [2009] WASC 177. I particularly draw attention to [2] and [42]. By orders dated 23 June 2009, the originating motion was dismissed with costs.
I insert at this point that in Magistrates Court proceedings I will come to shortly, which appear to have been commenced before the proceedings in CIV 1776 of 2008 were commenced in this court, Batemans, after the orders of 23 June 2009 just referred to, obtained judgment for unpaid costs from the applicant before me and then obtained the PSSO.
Returning to the file CIV 1776 of 2008, the next document on the file after the orders dated 23 June 2009 was the affidavit of the applicant sworn 6 April 2011 to which I have previously referred.
The application made by that affidavit is styled an application for an interim injunction pursuant to O 52 r 2 of the Rules of the Supreme Court 1971 (WA). The reference to O 52 r 2 appears to be an error. That rule concerns orders for the detention or similar of property 'the subject‑matter of a cause or matter, or as to which any question may arise' in that cause or matter.
I presume that O 52 r 1(2) is the provision meant. That sub‑rule permits a plaintiff to apply for an injunction ex parte on an affidavit in a case of urgency. I see the affidavit sworn 6 April 2011 by the applicant to be that affidavit. Otherwise, O 52 r 1(2) says the application must be made by motion or summons for an interlocutory injunction on notice to parties affected. There is here no such motion or summons. It is, however, my understanding that the solicitor for the applicant I referred to earlier obtained from the court a letter confirming my decision on 7 April 2011 adjourning the hearing to 13 April 2011 with liberty to apply on 24 hours' notice. The court sent a copy of that letter to the last address for Batemans the court had from the file CIV 1776 of 2008. Whether that was sufficient to place Batemans on notice of the hearing on 13 April 2011 is not a matter that I consider I need to resolve, as there is, it seems to me, no question but that the present application is indeed an ex parte one under O 52 r 1(2).
I turn to the affidavit of the applicant sworn 6 April 2011. It is relatively short as to its depositions, running to two pages, although the form of the affidavit also includes an index, and the index entries contain a number of statements of fact, including strongly worded statements of fact, which, it was evident to me from the applicant's submissions, she wished the court to take account of, in the same way she wished the court to take account of the statements of fact in the depositions on the two pages I have referred to.
It was also evident to me that the applicant wished the balance of her affidavit to be treated as if they were statements of fact made by her through those annexures. The annexures are fairly substantial, beginning at the page in her affidavit numbered 1 and running to the page numbered 57. That pagination is slightly misleading, as at least one of the pages is double‑sided, with the other side not receiving its own number. However, I will regard the annexures as indeed comprising all the matter there attached. However, I note that the court's approach to affidavits in support of applications of the present kind is to require the matter of evidence which supports the application to be the subject of a deposition, and the annexures to provide simply the basis for the depositions so relied upon.
I also have treated the entries in the index that I referred to as if they were depositions.
However, that in my view is to allow for an accommodation for the self represented status of the applicant of some substantial character and I would remind the applicant of the importance, if factual assertions are sought to be relied upon by her in future affidavits, that they appear as depositions as to which she makes oath and says whatever it is that she wishes to say.
From the affidavit of 6 April 2011, including the index entries I have referred to and the annexures I have indicated, the remainder of this background is extracted.
From that material it emerges that the applicant is the registered proprietor of two units on Mount Street in Perth.
One is unit 5B, 46 Mount Street, being lot 10 on strata plan 25 and the whole of the land comprised in certificate of title vol 253 folio 113A (unit 5B). I note that I do not have a copy of the certificate of title for unit 5B.
The other unit on Mount Street of which the applicant is the registered proprietor is unit 4B, at the same street address as unit 5B, being lot 8 on strata plan 25 and the whole of the land comprised in certificate of title vol 1773 folio 300 (unit 4B). I do have a certificate of title for unit 4B. It is a certificate of title appearing at page 57 of the affidavit of the applicant of 6 April 2011 and it bears at its foot the entry 'Landgate copy of original. Not to scale. Tuesday Mar 29 09 27092011' and other identifying detail. I have no other certificate of title extract in respect of unit 4B. Unit 4B is the focus of the present proceedings, although there will need to be some reference to unit 5B.
On 31 August 2010 the applicant applied for caveats on unit 5B and unit 4B. From material in the affidavit of the applicant of 6 April 2011, it appears that a caveat numbered L414714 was lodged in absolute form in respect of unit 5B: see pages 23 and 24 of her affidavit. As well, a caveat with the same number for 'estate or interest claimed', also in absolute form, showing the applicant as registered proprietor in order to prevent 'improper dealings', was lodged for unit 4B.
In fact, it appears from the affidavit of 6 April 2011 - see pages 19 and 20 - and the entry under 'Statements' at the foot of the certificate of title for unit 4B at page 57 that the caveat on unit 4B in fact bore, at some point at least, the number L413767 and that that caveat lapsed following the giving of notice to which s 138D of the Transfer of Land Act 1893 (WA) applied.
The applicant placed considerable emphasis on this. However, the relevance of it simply did not emerge for me. The present application is not one to reinstate a caveat by the applicant on her own property, unit 4B, so as to prevent the registration of any dealing in respect of it. It is not evident to me that proceedings of the present kind, ex parte, could be brought in that regard, nor is it clear to me that grounds for any such application have been made out. In any event, that is not the relief the applicant seeks.
I do note that the applicant did say to me that service of the notice of the expiry of the 21‑day period, after which, unless an order of this court was obtained, the caveat would lapse by virtue of Transfer of Land Act, s 138BD(2), never occurred. However, there is no indication of this in the applicant's affidavit of 6 April 2011.
I refer to these matters as examples of matters in the hearing before me explored in some detail by the applicant but whose relevance to her application was not made out. Further, it illustrates a situation where the applicant sought to have factual material put before me in respect of which there was neither anything in her affidavit of 6 April 2011 sufficient for that purpose nor any other basis upon which a matter could be put before me, such as background illuminating something in that affidavit.
I do note, however, that, whatever the correct number for the caveat on unit 4B, the caveats were, it seems to me, related to the possibility of sale of unit 5B and unit 4B under the PSSO.
I turn then to look in a little more detail at the certificate of title for unit 4B as at 29 March 2011 which I have. I do this to further clarify the nature of the matters before me.
That copy certificate of title shows a property (seizure and sale) order L235318, with a court reference no PER GCLM 12332/2007 registered 18 February 2010. This is what I understand to be the PSSO, and the Magistrates Court proceedings 12332 of 2007 are the proceedings in which the judgment against the applicant by her former solicitors was obtained and the PSSO made as I have previously indicated.
There is also, underneath the entry for L235318, and indented slightly from it, an indication or a statement that L403880, an order extending sale period, was registered on 18 August 2010. The significance of that order is a matter to which I will need to return after I have reviewed the provisions of both the Civil Judgments Enforcement Act 2004 (WA) and the Transfer of Land Act relevant to property (seizure and sale) orders.
The remaining entries of note to me on the certificate of title, apart from the entry at the foot with respect to caveat L413767, are references to a further property (seizure and sale) order L247611, with a court reference no PER GCLM 13153/2009, registered 4 March 2010 with, underneath it and indented, L414464, order extending sale period registered 31 August 2010.
The entry for that property (seizure and sale) order and that order extending sale period appears, from the matters to which the applicant referred me from inquiries that she made, and emerging as well from some of the material in the other files in this court to which I have referred, CIV 3168 of 2009 and CIV 1167 of 2010, to relate to proceedings against the applicant by the strata company for the building in which units 4B and 5B are contained.
That property (seizure and sale) order and that order extending sale period do not, it seems to me, appear to have a bearing on the present proceedings, save to say this. The applicant appeared to invest some significance in the proceedings in the Magistrates Court 13153 of 2009 as grounding her concerns about the propriety of actions taken against her by the persons who are bound up in or involved with the transfer the registration of which she seeks to enjoin. It was not apparent to me, however, how that concern could rationally be founded on what she described to me with respect to the proceedings in 13153 of 2009. In any event those matters were not, it seemed to me, sufficiently apparent from the affidavit of 6 April 2011 as ones I could properly take account of, let alone ascertain the relevance of, for the purpose of the proceeding before me today.
There is one further matter I need to describe in respect of the PSSO, being the one pursuant to which, purportedly at least, the transfer the applicant seeks to have enjoined was made. I have already indicated that the PSSO was registered as L235318 on 18 February 2010.
As I explained to the applicant on a number of occasions in the hearings before me, there is a difference between the date on which a property (seizure and sale) order is registered and the date on which it is made. On the material in the applicant's affidavit of 6 April 2011 the PSSO was made on 9 February 2010. I refer to her affidavit at page 25.
The applicant was concerned to tell me that following the hearing before me on 7 April 2011 her inquiries at the Magistrates Court had produced from them information based on their computerised records that in fact the PSSO was made on 1 February 2010. However, she could not produce any documentary confirmation of this. It is not clear to me how the information she received from the Magistrates Court could be reconciled, if the information was provided to her precisely in the form that I have indicated, with a matter in her affidavit at page 25 which purports to be a copy of a document issued by the court itself, referring to the PSSO as made on the later date.
In any event, however, it is not plain to me that the difference between 1 and 9 February 2010 is material for my purposes. I say that because of the order extending the sale period registered as L403880. I will explain that, which is a matter of some little difficulty, shortly.
It is now necessary that I provide a brief description of the law relevant to the registration of property (seizure and sale) orders and orders for the extension of sale periods under property (seizure and sale) orders.
The Civil Judgments Enforcement Act deals with property (seizure and sale) orders primarily but not exclusively in pt 4 div 6. It also deals with them in part in pt 6 of the Act. From those provisions the following emerges.

A property (seizure and sale) order is an order made by the court authorising the sheriff to seize and sell the judgment debtor's property to wholly or partially satisfy a judgment debt: see Civil Judgments Enforcement Act s 59(1). Such an order has a duration of 12 months after the day it was made or issued, unless the court cancels the order earlier: see s 62(1), read with s 102 and s 103. There is the evidence as to when the PSSO was made in this case, as I have indicated. On that basis, the PSSO would expire on 9 February 2011.
However, there is an exception to this duration provision. It is where a property (seizure and sale) order is registered under the Transfer of Land Act, and the sale period referred to in s 133 of the Transfer of Land Act expires at a time after the property (seizure and sale) order ceases to operate. In that case the property (seizure and sale) order is to be taken to remain in operation until the sale period expires: see Civil Judgments Enforcement Act, s 62(2).
The sale period referred to in the Transfer of Land Act s 133, is six months after the date of the registration of the property (seizure and sale) order ‑ I note that the time period runs from the date of registration of the property (seizure and sale) order, not the date on which it was made ‑ or, if the order is extended by order under s 133(13), the extended period: see Transfer of Land Act s 133(1), 'sale period'. By Transfer of Land Act s 133(13), on an application by a judgment creditor, the court issuing a property (seizure and sale) order may make an order extending the sale period for a period set by the court that is not longer than six months.
It is apparent from the certificate of title to which I earlier referred that such an order was made here and registered as I have indicated. I do not, however, have a copy of the order and therefore am unable to say what the period set by the court was.
Registration under the Transfer of Land Act of a property (seizure and sale) order and its effects are provided for in s 133 for property (seizure and sale) orders registered under the Act.
An application for registration of a property (seizure and sale) order must be made before the order ceases to have effect under the Civil Judgments Enforcement Act. See Transfer of Land Act s 133(3)(a).
The property (seizure and sale) order, once registered, has the effect for the purposes of s 133 until a discharge is registered under s 133(12), subject to an order suspending enforcement of the judgment for which the property (seizure and sale) order was made under Civil Judgments Enforcement Act s 15: see Transfer of Land Act s 133(5). No such discharge and no such suspending order appear to have been made in this case.
Under s 133(12), amongst other things, if a saleable interest - see s 133(1) 'saleable interest' - for which a property (seizure and sale) order is registered is transferred by registration of a 'sheriff's dealing' the registrar must register a partial or total discharge of the order as the case requires: s 133(12)(a). A 'sheriff's dealing' is a transfer of a saleable interest pursuant to a sale of that interest by the sheriff under a property (seizure and sale) order: s 133(1) 'sheriff's dealing'.
By Transfer of Land Act s 133(7), while a property (seizure and sale) order has effect a sheriff's dealing prevails over an unregistered instrument, document or writing. This is unless a caveat is lodged before the registrar has received an application to register a property (seizure and sale) order, or the sheriff gave permission for lodgement while the property (seizure and sale) order had effect: see s 133(7)(a).
If a sheriff's dealing is lodged while the property (seizure and sale) order has effect, the registrar must register the dealing: s 133(9). When a sheriff's dealing is registered under s 133(9), the dealing, if made by the sheriff, has the effect, amongst other things, as if it had been made by the judgment debtor, and the judgment debtor's title to the saleable interest is extinguished, as is the estate or interest of an unregistered purchaser, transferee or mortgagee of the saleable interest, unless it is the subject of a caveat of the kind I have previously referred to: s 133(11).
It appears in this case that an application was made on 19 August 2010 to extend the PSSO to 2 February 2011, but that application was dismissed by order on 22 October 2010. The applicant appears to believe that, whether as a consequence of that dismissal or of other matters together with that dismissal, the PSSO L235318 expired on 31 August 2010. I am unable to see any basis for such a belief, given when the PSSO was made. At the same time, given when the PSSO was made, it is not clear to me why an extension to 2 February 2011 would have been applied for, as the order was due to expire at a later date. I am unable to go any further into the matter than that.
I note, however, the effect of an order extending the sale period under the provisions of the Civil Judgments Enforcement Act and the Transfer of Land Act to which I previously referred, and that there was such an order in this case. At the same time, I was not provided with a copy of the order extending the sale period and so I have no evidence from such an order of the date to which the extension was made, a matter to which I earlier referred.
I do have a copy of an order in the Magistrates Court proceedings 12332 of 2007 dated 11 February 2011 that the saleable interest in unit 4B may be sold by private agreement at less than a fair value of the saleable interest but not for an amount less than $530,000. That order was made pursuant to Civil Judgments Enforcement Act s 69(2), which permits such orders to be made, in effect dispensing with the requirement in s 69(1)(b) and (c), for sales under a property (seizure and sale) order of the saleable interest in real property to be by public auction and for not less than the fair value of the interest.
The applicant puts considerable emphasis on this order and I will return to it in the context of her submissions shortly. For now I note that the order would appear to indicate that the extension period under the order extending the sale period had not by then - that is, 11 February 2011 - expired. However, in my view such a period must have expired in any event by 18 February 2011, assuming that the order to extend the sale period was for the maximum extension allowable, namely six months, under the Transfer of Land Act provision I previously referred to.
There is evidence of an offer by a Ms Tyler to purchase unit 4B, an offer dated 7 January 2011 addressed to the deputy bailiff, a Mr Faulkner, for the price of $523,000. This followed an unsuccessful attempt by Mr Faulkner to sell unit 4B by public auction held on 22 December 2010 under the PSSO. At that auction the highest offer obtained was for $450,000.
Following the receipt of bids, Mr Faulkner invited the bidders to submit offers, indicating he would seek an order under Civil Judgments Enforcement Act s 69(2). Three offers were received in the range from $462,000 to the $523,000 offer to which I have referred.
I note that there was a valuation of unit 4B done as at 29 June 2010 at a price or showing a 'kerbside' valuation of $675,000. This valuation contained a reference to a disposition 'under offer' of a unit 2B in the same building for a price between $580,000 and $595,000. This reference was apparently to this disposition as a possibly comparable sale.
In respect of matters of a valuation kind, I further note that I have evidence in the affidavit of 6 April 2011 that there had been a prior attempt, on 15 July 2010, to sell unit 4B by public auction. The applicant described in some little detail how this auction had originally been one to sell unit 5B but had, more or less at the last moment, been moved to unit 4B. This, however, did not emerge at all clearly from any of the material in her affidavit.
This earlier auction produced a successful bid of $800,000. However, this sale had not completed and therefore there was no successful sale of unit 4B as a result of the public auction on the earlier date.
There is also evidence of a sale to Ms Tyler of unit 4B at a price of $530,000 which, it may be observed, raised the price from her offer of $523,000 to the minimum provided for by the Magistrates Court orders of 11 February 2011. I do not, however, have a copy of the contract of sale so as to determine the date upon which the sale was purportedly made.
I do have evidence in the affidavit of 6 April 2011 that registration of a transfer under this sale is presently being sought.
I was also told that the purchaser, Ms Tyler, had lodged a caveat in respect of her purchase.
Although the affidavit of 6 April 2011 does not annex a copy of the transfer to Ms Tyler or of her affidavit, and the certificate of title copy annexed to her affidavit shows no sign of such a caveat, the applicant did produce, as documentary material she obtained from Landgate after the hearing on 7 April 2011, two relevant documents.
One was a transfer. This transfer showed the date for the transferor's signature in the attestation page of 22 March 2011 and, at the top of the attestation page, a date 1 April 2011. I note that neither of those dates can be taken as the date of the contract of sale on which the transfer was based.
In that regard, the applicant reported to me on a conversation she said she had had with certain real estate entities, who had indicated to her in the conversation, but had not provided any documentary material in support, that the contract of sale to Ms Tyler in respect of which the transfer could be seen to have been lodged was one which was dated 14 February 2011.
If that information is to be accepted, that would appear to indicate a date capable of falling within the period of time in which a sale could take place under the PSSO. However, the matter can be taken, on the evidence before me, no further than that and, indeed, falls short of establishing that the sale occurred on a date within that period.
The other matters in the transfer which I should note at this point are these, having noted the attestation material. The transfer is from Mr Faulkner to Ms Tyler at a consideration of $530,000 and is on the form 'Transfer of land under property (seizure and sale) order'. Furthermore, there is, on the last page of the transfer, which bears the number L592329T, a note in handwritten form. The handwritten note reads as follows:
Please advertise in local newspaper 14 days' notice of intention to register without dupe CT. Produced pursuant to section 133 subsection (10) TLA.
That note is with a signature indicating it is of an Assistant Registrar of Titles and the date 7 April 2011. That note assumes some significance in these reasons, as I will explain shortly.
The other document obtained from Landgate is the caveat I referred to a moment ago. This caveat is one showing the caveator as Tracey Anne Tyler; an agreement dated 17 March 2011; a registration of 21 March 2011 under the number L581421C; an estate or interest being claimed as fee simple as purchaser; and the estate or interest being claimed by virtue of
transfer of land dated 17 March 2011 by which Basil Hector Faulkner in his capacity as Deputy Sheriff transferred the registered proprietor's right, title and interest in the abovementioned land to the caveator in order to give effect to a sale under property (seizure and sale) order L235318.
The caveat is absolute in form.
I note in passing that a transfer of land dated 17 March 2011 is not easily connected with the transfer of land before me.
In any event, accompanying the document in the form of the caveat I have just described, which the applicant obtained from Landgate, is a further document. This further document is a withdrawal of caveat. It is dated 30 March 2011 and it appears as L592328WC.
Neither the caveat nor its withdrawal appears on the certificate of title copy that I have described. The lack of reference to the withdrawal would of course be easy to understand, given the date of the certificate of title, 29 March 2011. The lack of reference to the caveat by Ms Tyler is not easy for me to explain. However, in the final analysis I believe I do not need to explain it.
Finally, I note I have evidence of a sale by offer and acceptance dated 1 February 2011 by the applicant to a charitable trust of hers at a price of $800,000. Settlement of this sale is not to occur, however, until there has been a successful outcome of proceedings begun against the Premier of this State for compensation for the applicant's loss of certain very valuable assets. That compensation is apparently to represent the 'founding funds' for the charitable trust in question, including, as I understand it, the source of the payment under the contract of sale.
I should insert that if the PSSO was on foot on 1 February 2011, it is not evident to me that this contract of sale could be validly implemented.
However, the price at which that offer and acceptance was made was a matter on which the applicant laid heavy emphasis, as she did on the earlier although unsuccessful sale under the first auction of 15 July 2010, and on the matter in the valuation of $675,000 to which I referred earlier, as well as on what she said was a mortgage valuation of unit 4B at $800,000 which she had obtained from the ANZ Bank.
It will become evident that the applicant disagrees with the valuation of $675,000 but, I presume, would draw to my attention that, even so, it is above the price at which the sale to Ms Tyler is to be completed.
I also note, however, that I do not have a copy of the mortgage valuation, if it is in writing, and therefore am unable to say as at what date it speaks or on what basis it was prepared.
This concludes the rather lengthy background that I considered it was necessary to provide. This background is, however, one that I considered it was necessary to provide in view of the difficulty with which I was able to extract an understanding of the background to and basis of the present application.

The present application

I turn then to the present application. As I have indicated, the present application is directed to Landgate for an interim injunction to enjoin it from registering the transfer to Ms Tyler. The urgency on which the application is rested as one for an interim injunction made ex parte was put to me, on 7 April 2011, as the imminence of the registration of transfer.
I note that at the hearing before me today there was some reliance by the applicant in relation to her application not only on the sale to Ms Tyler at an undervalue but also to the sale to Ms Tyler as not being validly under a property (seizure and sale) order. That submission rested on the assertion, which the applicant maintained, that the property (seizure and sale) order might be seen to have no effect after 31 August 2010. However, I do not believe I have sufficient evidence so to conclude. Nor do I have sufficient evidence to conclude that the property (seizure and sale) order ceased to have effect before the sale to Ms Tyler. The burden, it seems to me, falls on the applicant to establish the matters of relevance to this contention.
I should note that it does not matter when the property (seizure and sale) order was made, whether 1 February 2011 or 9 February 2011, because of the extension of the sale period to which I referred. It should by now be apparent that that is the case from my description of the provisions of the Civil Judgments Enforcement Act and the Transfer of Land Act.
I should also note that although the registrar is not required to register the transfer pursuant to the property (seizure and sale) order, if that it was, because on any view of the facts the transfer was presented after the end of the property (seizure and sale) order's operation, it seems to me that the registrar may indeed register the transfer if the registrar has dispensed with the production of certificate of title. Indeed, that is, as I have already indicated, precisely what the registrar proposes to do in this case.
If the transfer is registered then the interest of the transferee, Ms Tyler, is paramount, save in the case of fraud - see s 68(1) of the Transfer of Land Act - or what is compendiously referred to as in personam exceptions properly asserted in this regard against her. As will become apparent, fraud is precisely what is asserted for the other basis for the applicant's application, being the basis other than the fact she contends the sheriff's sale was not pursuant to the PSSO.
I accept that an injunction may indeed be granted to enjoin registration of a transfer of land under the Transfer of Land Act in suitable cases. I further accept that fraud involving parties to a sheriff's dealing would be a suitable case. Here, as I have said, the applicant alleges fraud.
The fraud she alleges is a conspiracy between Ms Tyler, the judgment creditor, and Mr Faulkner. The fraud alleged consists in a sale of unit 4B at a price to conform to the minimum under the order in Magistrates Court order of 11 February 2011 and below the price of $800,000 at which on 1 February 2011 the applicant sold unit 4B to her charitable trust and which was the value placed on unit 4B by a bank. The applicant also made reference in this regard to the sale at first auction on 15 July 2010 at the price of $800,000.
I turn then to the applicable law.

The applicable law - and its application

I first consider whether, in view of all the circumstances in this case, the matter is one that is required to be dealt with as an application for an interim injunction. The normal processes of the court, it may be said, are ones in which an application for an injunction of the present kind is not made ex parte. However, as the rules clearly contemplate, such applications may be made.
I refer, for a compact and most useful discussion of the circumstances in which a court may or may not accede to an application for an interim injunction made ex parte, to the text, Seaman, P, Civil Procedure in Western Australia [52.1.10] as at 13 April 2011. To summarise the effect of that account, the applicant would need to show, for the matter to be dealt with as an interim injunction application ex parte, serious damage and that further delay would involve greater injury than instant action.
The serious damage on which the applicant relied arose out of the fact that there is evidence from her affidavit in a letter from the solicitors for Ms Tyler dated 22 March 2011 that those solicitors are pressing for the earliest registration possible of the transfer to their client. Further, those solicitors wish to have the applicant leave unit 4B. Unit 4B is, however, the applicant indicated to me, her residence and, although she owns other property, notably unit 5B, and certain property in Tasmania, the unit 5B referred to is tenanted and she is therefore not in a position to take up occupancy of it without the tenant's agreement, and the property in Tasmania has been sold, with settlement pending.
However, the transfer that the applicant obtained that I referred to a short while ago and which the applicant produced to me showed the registration of the transfer is not imminent. There is a notice being published in a newspaper and a 14 day period to expire. By my calculations, the earliest that the transfer could be registered is 21 April. That delay is not one which in my view is such as to justify the court proceeding on this matter as an application for an interim injunction made ex parte.
It does not seem to me that eviction as a matter related to registration or, indeed, as one independent of registration, is sufficiently imminent to require that manner of proceeding, at least on the material available to me.
I would thus dismiss the present application on the ground that it is not one that should be heard on an ex parte basis. That dismissal would not, however, prevent the applicant bringing an application on the same or other evidence as an interlocutory injunction application by motion or summons, with notice to the affected parties. The affected parties would, it seems to me, be the Registrar of Titles, the judgment creditor Malcolm James Bateman, the deputy bailiff Mr Faulkner and the transferee Ms Tyler.

However, I should not leave the matter at that. Given the argument the applicant addressed to me in relation to the case she believed she had made for an injunction to be ordered, and I believe it might be of assistance to the applicant to have my preliminary - and I stress preliminary - view of the matter she addressed to me before her. I stress this is a preliminary view, as I do not consider I need to arrive at a final determination of it.

A preliminary view of the merits of the present application

In order to provide that preliminary view, I need first to describe the law applicable to the grant of an interlocutory injunction, which would include for this purpose an interim injunction properly heard as one.
This law is sufficiently set out for my purposes in Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 [7] and [11] (Beech J). That statement indicates that I am required to consider whether the applicant has shown three factors are present: first, a serious question to be tried; second, irreparable injury for which damages would not be adequate compensation unless an injunction were granted; and, third, the balance of convenience favours the granting of the injunction. I will explain each of those factors in a moment. However, I should note at the outset these factors are interrelated, as I will indicate.
I turn to the factors, again stressing that I provide a preliminary view only with respect to them.

Is there a serious question to be tried?

As I have indicated, if there was a fraudulent conspiracy to which the transferee was a party along with the other parties to the transfer, then the court could, in my view, grant relief that included an order restraining the registration of the transfer. I leave aside the matter of whether the sale was made pursuant to a property (seizure and sale) order that was still in operation. It seems to me that I have already indicated my view of that basis.
The answer to the question whether the plaintiff, the applicant, has made out a case here of fraudulent conspiracy is one to be determined on the following from Twinside [9], whether there was
a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo pending the trial. How strong the probability needs to be depends upon the nature of the rights the plaintiff asserts and the practical consequences likely to flow from the orders the plaintiff seeks.
That last sentence, in my view, indicates the interrelation I previously referred to, because in my view it refers to whether the rights the plaintiff asserts are ones in respect of which damages would be an inadequate remedy, and the practical consequences refers to the balance of convenience. The interrelation arises because the stronger the case under serious question to be tried, the less a balance of convenience against an applicant would tend to indicate that the order should not be made, and the converse would apply: the weaker the case to be tried, the more likely it is the balance of convenience might be telling.
The difficulty for the applicant's case, in my view, appears here to be her evidence of three attempts to sell the property - the first and the second auctions and the solicitation of offers after the second - which did not produce in any of them a successful sale at a price higher than $530,000. The sale in the first auction was not successful, I would stress.
The valuation at a significantly higher price that I referred to earlier, of $675,000, might, it seems to me, arguably be seen as of a nature and obtained at a time which only with difficulty could be seen to point to a fraudulent conspiracy based on a sale at an undervalue. I have noted for this purpose the comparable sale which the applicant described to me as not comparable in any way because of where unit 2B was located in the building. However, it is not evident to me that the person who was the author of the valuation had not taken account of matters of that kind; and it is also, it seems to me, a matter that I can consider that, notwithstanding that indication of the price of unit 2B, it did not readily stand against the lack of success in the first and the second auctions and the solicitation of offers after the second.
I have noted what the applicant said to me, that neither of the first nor the second auction was properly advertised. However, no evidence of this was put before me.
I have also noted the sale to the charitable trust. However, it is one which arguably should receive little weight, as it followed the events in question, was to an entity the applicant herself controlled and is qualified by reference to an event the occurrence of which is neither certain nor proximate, namely, success in the proceedings against or as a result of the proceedings against the Premier of Western Australia.
I have also noted the mortgage valuation to which the applicant referred, but it seems to me there is little weight I can give it, for the reasons I have previously indicated: that I do not have its date or otherwise an indication of on what basis it was compiled.
The applicant, it should be said, pressed particularly strongly on me, of all the factors I have described, that the solicitation of offers following the second auction produced one which it should be inferred was raised in a collusive way simply to meet the minimum provided for under the order made on 11 February 2011 under the Civil Judgments Enforcement Act s 69(2).
However, in my view such an inference is not clearly the one which even arguably should be drawn. Against the background of the prior sale attempts, in my view evidence limited as I have just described it is not sufficient to indicate that the follow-up sale at $530,000 was otherwise than a result of further negotiations to sell at the highest price practically obtainable. Again, I stress the preliminary character of that view and the limited evidence on which I have to proceed.
I should not conclude this aspect of serious question to be tried without recording that the applicant pressed on me a variety of matters, the detail of which I must confess was unclear to me but which were sufficient to convince me that the applicant has honest concerns about the propriety of actions taken against her that led to the judgment on which the PSSO was obtained, as well as actions purportedly taken under it. I have referred to some of those concerns earlier. But the basis for those concerns simply was not sufficiently made out so as to show that they had anything of substance to add to what I previously described or, indeed, that they had any strong relevance to the matters before me today.
I turn to the second factor: would the applicant suffer irreparable injury for which damages would not be an adequate remedy unless the injunction were granted?

Would the applicant suffer irreparable injury for which damages would not be an adequate remedy?

This matter goes to the nature of the rights the applicant asserts. These rights are proprietary in character. The applicant asserts that her rights as registered proprietor of unit 4B, where she is in possession of it as a residence, are at stake.
The authorities establish that 'damages are rarely adequate compensation for the invasion of proprietary or possessory rights': Owen J, 'The Interlocutory Injunction', in Carroll R ed, Civil Remedies: Issues and Developments (1993) 253, where Owen J cites authority. However, even if this issue were resolved in the applicant's favour, as I believe it would be here, this would not be sufficient on its own. Other factors must also be established.
Furthermore, it seems to me that to the extent that resolution of this issue is relevant to the serious question to be tried, it would not, arguably at least, be sufficient to overcome deficiencies in the serious question to be tried that I have referred to. This is in view of the course of attempts to sell unit 4B on the evidence I have and the difficulties with the valuation and alternative sale evidence to which I have referred.
I turn then to the next factor. What balance of convenience has been shown?

What balance of convenience has been shown?

Balance of convenience refers to the balance between the risks and injustice to the applicant if the relief is not granted where she had a right to that relief that she would have established at trial, on the one hand, and the risks of injustice to those affected if relief is granted where the applicant had no such right, on the other.
I am prepared to conclude that the balance of convenience might indeed favour the applicant here, I stress again, without arriving at a final view of the matter. The applicant stands to lose both title to unit 4B, at least at the level of registration, and suffer eviction from it. On the other hand, those affected if the transfer is not registered face further delay in any event in the completion of the disposition of unit 4B, where there have already been some significant delays. The former forms of loss ‑ that is, to the applicant ‑ seem to me to outweigh the latter - that is to say, to those affected by non-registration of the transfer; principally the judgment creditor, the bailiff and Ms Tyler.
However, at least arguably, it seems to me, as a preliminary view, that balance does not suffice to overcome deficiencies in the serious question to be tried I have referred to. This is in view of the same matters I referred to, but, I stress, this is a preliminary view only.
Further, again as a preliminary view, the combination of both the previous factor and this one would not seem to me clearly to suffice to overcome those deficiencies. The applicant's case does not seem to me clearly to have the strength to overcome, even with the strong combination of those factors in her favour that I consider the applicant has, at least arguably, made out here.

Conclusion

I conclude then as follows. It seems to me that the present application must be dismissed as it was not properly brought on the most recent material made available to me as an interim application ex parte.
I should add that, if it were necessary for me to arrive at a conclusion on the application had it been brought properly as an application for interim injunction brought ex parte, it is possible that the resolution would be against the applicant on the material properly before me. However, I do not need to arrive at a final conclusion in that respect; and there may of course be other evidence that might properly be put before a court in a subsequent proceeding.
Accordingly, my decision is that the present application is to be dismissed for the reasons I have described.