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Cobbold v Barrett

Cobbold v Barrett

Case [2006] WASC 252 7 November 2006

Breach of Contract

Waiver

Estoppel

Relief against Forfeiture

Specific Performance

Property Law

Contract Law

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COBBOLD -v- BARRETT & ANOR [2006] WASC 252

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 252
Case No:	CIV:1935/2006	Heard:	20 OCTOBER 2006
Coram:	JENKINS J	Delivered:	7/11/06
No of pages:	19	Judgment Part:	1 of 1
Result:	Caveat extended on conditions
Category:	B
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Parties:	STANLEY GEORGE COBBOLD ELIZABETH MICHELLE BARRETT THE REGISTRAR OF TITLES
Catchwords:	Conveyancing Caveats Extension of caveat Purchasers interest under an uncompleted contract for sale of land Construction of finance clause Estoppel Relief against forfeiture
Legislation:	Transfer of Land Act 1893 (WA), s 138B, s 138C
Case References:	Adderley v Dixon (1824) 1 Sim & St 607 Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42 Deputy Commissioner of Taxation v Corwest Management Pty Ltd [1978] WAR 129 Dougan v Ley (1946) 71 CLR 142 Halse v Embling, unreported; SCt of WA; Library No 970734, 22 December 1997 Hewett v Court (1983) 149 CLR 639 J & H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546 Kern Corporation Ltd v Walter Reid Trading Pty Ltd (1987) 163 CLR 164 Kuper v Keywest Constructions Pty Ltd (1990) 3 WAR 419 Legione v Hateley [1982] 152 CLR 406 Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 210 CLR 181 Shakibaee v Chan (2001) 24 WAR 97 Sudbrook Trading Estate Ltd v Eggleton [1983] 1 AC 444 Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315 Westminster Properties Pty Ltd v Comco Constructions Pty Ltd (1991) 5 WAR 191 Brown v Heffer (1967) 116 CLR 344 Bull v Gaul [1950] VLR 377 Ciavarella v Balmer (1983) 153 CLR 438 Commonwealth v Verwayen (1990) 170 CLR 394 Gange v Sullivan (1966) 116 CLR 418 Hartley v Hymans [1920] 3 KB 475 Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537 Peter Turnbull and Company Pty Ltd v Mundus Trading Company (Australasia) Pty Ltd (1954) 90 CLR 235 Phillips v Ellinson Brothers Pty Ltd (1941) 65 CLR 221 Romanos v Pentagold Investments Pty Ltd (2003) 217 CLR 367 Stern v McArthur (1988) 165 CLR 489

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : COBBOLD -v- BARRETT & ANOR [2006] WASC 252 CORAM : JENKINS J HEARD : 20 OCTOBER 2006 DELIVERED : 7 NOVEMBER 2006 FILE NO/S : CIV 1935 of 2006 MATTER : Section 138 of the Transfer of Land Act 1893 (WA) BETWEEN : STANLEY GEORGE COBBOLD

Plaintiff

AND

ELIZABETH MICHELLE BARRETT

First Defendant

THE REGISTRAR OF TITLES

Second Defendant

Catchwords:

Conveyancing - Caveats - Extension of caveat - Purchasers interest under an uncompleted contract for sale of land - Construction of finance clause - Estoppel - Relief against forfeiture

Legislation:

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

(Page 2)

Result:

Caveat extended on conditions

Category: B

Representation:

Counsel:

Plaintiff : Mr A J Camp

First Defendant : Mr C W Lockhart

Second Defendant : No appearance

Solicitors:

Plaintiff : Butcher Paull & Calder

First…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cobbold v Barrett

Details

AGLC: Cobbold v Barrett [2006] WASC 252
Case: [2006] WASC 252
Decision Date

CaseChat Overview and Summary

The case of Cobbold v Barrett involved an application for the extension of a caveat lodged by the plaintiff, Stanley George Cobbold, over land owned by the defendant, Elizabeth Michelle Barrett. The plaintiff argued that he had a caveatable interest in the land as the purchaser under an uncompleted contract for sale of land. The court had to decide whether the plaintiff had a serious question to be tried as to whether he was entitled to specific performance of the contract. The plaintiff submitted that there were serious issues to be tried, including whether the defendant had a contractual right to terminate the contract and whether equity would relieve against forfeiture of the plaintiff's interest in the subject land.

The court found that there were arguable issues as to whether the plaintiff had waived compliance with the finance clause and whether the defendant's termination of the contract was effective. The court also found that it was arguable that the defendant was estopped from terminating the contract and that equity may relieve against forfeiture of the plaintiff's interest. The court concluded that the balance of convenience favoured the extension of the caveat and ordered that the caveat be extended on the condition that the plaintiff institute and prosecute proceedings for the specific performance of the contract within a limited time.

The final orders of the court were not stated in the judgment, but it was noted that there would be liberty to apply so that the defendant may re-list the matter for further consideration should the plaintiff fail to institute and prosecute the proceedings in accordance with the court's orders.

Orders