Cherramay Pty Ltd v Ong
[2012] WASC 130
•7 MARCH 2012
CHERRAMAY PTY LTD -v- ONG [2012] WASC 130
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 130 | |
| Case No: | CIV:1370/2012 | 7 MARCH 2012 | |
| Coram: | EDELMAN J | 7/03/12 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Caveat extended | ||
| B | |||
| PDF Version |
| Parties: | CHERRAMAY PTY LTD KIM SIONG ONG LAN CHENG NG REGISTRAR OF TITLES (WA) |
Catchwords: | Conveyancing Real property Caveats Application to extend operation of caveat Turns on own facts |
Legislation: | Transfer of Land Act 1893 (WA), s 138B |
Case References: | Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 Bashford v Bashford [2008] WASC 138 Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42 National Australia Bank v McCourt [2010] WASC 237 Perron Investments Pty Ltd v Tim Davies Landscaping Pty Ltd [2009] WASCA 171 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
KIM SIONG ONG
LAN CHENG NG
First Defendants
REGISTRAR OF TITLES (WA)
Second Defendant
Catchwords:
Conveyancing - Real property - Caveats - Application to extend operation of caveat - Turns on own facts
Legislation:
Transfer of Land Act 1893 (WA), s 138B
Result:
Caveat extended
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Category: B
Representation:
Counsel:
Plaintiff : Mr M D Reid
First Defendants : In person
Second Defendant : No appearance
Solicitors:
Plaintiff : Jackson McDonald
First Defendants : In person
Second Defendant : No appearance
Case(s) referred to in judgment(s):
Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57
Bashford v Bashford [2008] WASC 138
Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42
National Australia Bank v McCourt [2010] WASC 237
Perron Investments Pty Ltd v Tim Davies Landscaping Pty Ltd [2009] WASCA 171
(Page 3)
- EDELMAN J:
(These reasons were delivered at the conclusion of the hearing and this judgment has been edited from the transcript for formatting and typographical errors.)
Introduction
1 This is an ex parte application by the plaintiff, Cherramay Pty Ltd (Cherramay), for extension of a caveat. The caveat is lodged over land owned by the first defendants, Mr Ong and Ms Ng. The land is at lot 507 on diagram 84050 being the whole of the land comprised on certificate of title vol 1958 folio 190 and being situate at 137 Ladywell St, Beckenham (the Land).
2 Cherramay have gone to some lengths to notify Mr Ong and Ms Ng of this hearing at very short notice. An affidavit of service by Mr Wayne Primrose sworn this morning deposes to a number of steps he took to try to serve the documents relating to this action on Mr Ong and Ms Ng. He says that he managed to serve Ms Ng yesterday but was unable to serve Mr Ong and neither Ms Ng nor Mr Ong have entered an appearance to this action but both attended court this morning.
3 This application is made because the caveat will otherwise expire on 8 March 2012. The reason for expiry is that following an application by first defendants to Landgate, a notice was issued by Landgate under s 138B of the Transfer of Land Act 1893 (WA). The effect of the notice is that the caveat will expire unless this court extends it for a further period, or until further order of the court, and the caveator, Cherramay Pty Ltd, has lodged with the Registrar a copy of the order.
4 Mr James Little has sworn an affidavit on 2 March 2012 in support of Cherramay's application for the extension of the caveat until further order of the court. His evidence is that Cherramay entered a building contract to build a two story house and shop on the Land (the Building Contract).
5 Mr Little says that the caveat was lodged by Cherramay on 16 April 2007. The caveat which was lodged followed a failure by the first defendants to pay amounts owing under a final payment progress claim certificate, which Mr Little says is at least $66,125.42 (including GST).
6 In District Court proceedings commenced against them, the first defendants deny that this money is owed by them. The first defendants
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- admit not paying the final progress claim. However, they have brought a counterclaim against Cherramay claiming damages including for incomplete and defective works and delays. The District Court proceedings by Cherramay for the recovery of the money which it says is due, and the counterclaim, have been inactive since 25 January 2010. Mr Little says that he has taken no steps to progress that action following the first defendants' failure to provide discovery. But he says that he intends to reactivate the action.
A broad outline of the legal principles applicable to the extension of caveats
7 Section 137 of the Transfer of Land Act enables a beneficiary or other person claiming an estate or interest in land to lodge a caveat. Section 138C(2) provides for the Supreme Court's powers when a caveator applies to the Supreme Court for an order extending the operation of a caveat. Those powers include extending the order for a period specified or extending the order until further order of the court.
8 The principles concerning when a caveat should be extended are well known. Section 138C(2)(a) requires this court to be 'satisfied that the caveator's claim has or may have substance'. In assessing whether to grant the extension of the caveat the two broad issues are whether there is a serious question to be tried as to whether a caveatable interest exists and, if so, whether the balance of convenience favours the retention of the caveat. A caveatable interest must be a proprietary interest in land: Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42, 50 (Owen J).
9 In Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57, 82 [65], Gummow and Hayne JJ explained that the existence of a serious question to be tried, or prima facie case, involves showing 'a sufficient likelihood of success to justify in the circumstances the preservation of the status quo' pending trial. How strong the likelihood of success needs to be depends upon the nature of the rights asserted and the practical consequences likely to flow from the order sought. See also Perron Investments Pty Ltd v Tim Davies Landscaping Pty Ltd [2009] WASCA 171 [42] (Newnes JA).
The caveator's interest and the balance of convenience
10 I have read the pleadings in the District Court and the evidence of Mr Little on behalf of Cherramay. On the limited evidence before me, I am satisfied that on the basis of this evidence that there is a serious question to be tried as to whether a caveatable interest exists and that the
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- balance of convenience favours the retention of the caveat on the basis of the interim orders I will make.
11 Clause 6 of the Building Contract provides that the Owner (defined in a schedule of particulars as the first defendants) charges the Land to the Builder (defined as Theremelec Construction which Mr Little attaches a business name extract showing as the business name of Cherramay) in the following terms:
[C]harges the land constituting the Site with the due payment to the Builder of all the monies that will and/or may become payable hereunder and irrevocably authorises and consents to the Builder lodging an absolute caveat in respect of the Site to protect the Builder's interests herein.
12 On the basis of the limited evidence before me I am also satisfied that the balance of convenience favours the retention of the caveat for the interim orders I will make. One factor in considering the balance of convenience is that failure to extend a caveat could have the effect of destroying the benefit of Cherramay's claimed security interest in the Land: Custom Credit (50); Bashford v Bashford [2008] WASC 138 [50] (Beech J); National Australia Bank v McCourt [2010] WASC 237 [39](a) (Corboy J).
13 There is, however, no evidence before me at this stage concerning any prejudice to the defendants. The defendants have not yet had an opportunity to enter an appearance or to put any evidence before the court.
14 It is also relevant that the orders that I propose to make are only interim orders. They do not dispose of the originating summons. I have not heard full argument from Cherramay in relation to the extension of the caveat. I have not heard any argument from the first defendants supported by an affidavit evidence or any submissions or legal representation. I have not yet received any affidavit evidence from the first defendants.
The orders sought
15 Orders are sought extending the caveat until further order of the court, and also programming the filing of affidavit evidence by the first defendants (one of whom has not been served and, as I have mentioned, neither of whom has entered an appearance) and by Cherramay before a hearing of Cherramay's originating summons for orders extending the caveat until further order.
16 In circumstances in which, as I have described, no appearance has been entered by the first defendants, and in which the originating
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- summons was filed only on 6 March 2012 (yesterday) and served only on Ms Ng, I consider that the appropriate order is that the caveat be extended for a period of time to permit any appearance to be filed, to permit programming of the hearing of the originating summons and to permit the first defendants to lodge and serve any affidavit evidence and make any submissions. I am also conscious that the District Court proceedings are currently inactive.
17 The order I will make is to extend the caveat for six weeks. That was the period that was sought by the first defendants and by that time the first defendants will have had the opportunity to enter an appearance and orders can then be sought by Cherramay for the programming the hearing of the originating summons and extending the caveat until any further date.
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