Coco C'Bay Association (Inc) v Paddison

Case [2022] WASC 5


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   COCO C'BAY ASSOCIATION (INC). -v- PADDISON [2022] WASC 5

CORAM:   SOLOMON J

HEARD:   26 OCTOBER & 6 DECEMBER 2021

DELIVERED          :   12 JANUARY 2022

FILE NO/S:   CIV 2119 of 2021

BETWEEN:   COCO C'BAY ASSOCIATION (INC).

Plaintiff

AND

MURRAY CLIVE PADDISON

First Defendant

DAWN MICHELLE EALES

Second Defendant

THE REGISTRAR OF TITLES

Third Defendant


Catchwords:

Application for extension of caveat - Plaintiff Association with Buyer Covenant and Rules - Absolute caveat to protect plaintiff's interest - Subject to claim caveat - Caveatable interest - Charge - Non-pecuniary objection - Obligations running with the land

Legislation:

Interpretation Act 1984 (WA), s 5.
Transfer of Land Act 1893 (WA), s 4, s 4(1), s 105, s 137, s 138, s 138B, s 138C(1), s 138C(2)

Result:

Caveat extended

Category:    B

Representation:

Counsel:

Plaintiff : G Nofal
First Defendant : M Rennie
Second Defendant : M Rennie
Third Defendant : No appearance

Solicitors:

Plaintiff : HHG Legal Group
First Defendant : HFM Legal Group
Second Defendant : HFM Legal Group
Third Defendant : No appearance

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

Aged Care Services Pty Ltd v Kanning Services Pty Ltd [2013] NSWCA 393; 86 NSWLR 174

Avco Financial Services Ltd v White [1877] VR 561

Bashford v Bashford [2008] WASC 138

Beneficial Finance Corp Ltd v Multiple Constructions Pty Ltd (1995) 36 NSWLR 510

Coleman v Bone (1996) 9 BPR 16,235

Composite Buyers Ltd v Soong (1995) 38 NSWLR 286

Custom Credit Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42

Forestview Nominees Pty Ltd v Perpetual Trustees WA Ltd (1996) 70 FCR 328; 141 ALR 687

Graham v Chappell (1993) 9 WAR 157

Gumland Holdings Pty Ltd v Duffy Brothers Fruit Market (Campbelltown) Pty Ltd (2008) 234 CLR 237

IMF (Aus) Ltd v Meadow Springs Fairway Resort Ltd (2008) 253 ALR 240

Kalx Capital Securities Pty Ltd v Richardson 1 Pty Ltd [No 2] [2021] WASC 302

Kingstone Constructions Pty Ltd v Crispel Pty Ltd (1991) 5 BPR 11,987

KT & T Developments Pty Ltd v Tay (1995) 13 WAR 363

Lang v Asemo [1989] VR 773

McDonald's Australia v Bendigo and Adelaide Bank [2014] VSCA 209

Midland Brick Company Pty Ltd v Welsh (2006) 32 WAR 287

Midland Brick Pty Ltd v Welsh [2002] WASC 248

Murphy v Wright (1992) NSW Conv R 55-652

Nigam v Divjakoski [2010] WASC 185

P&A Swift Investments (a firm) v Combined English Stores Group [1989] 1 AC 632

Re Charge Card Services Ltd [1987] Ch 150

Spunter Pty Ltd v Hall & Anor [2006] WASC 6

Troncone v Aliperti (1994) 6 BPR 13,291

West Coast Developments Pty Ltd v Lehmann [2013] VSC 617

West Coast Developments Pty Ltd v Lehmann [2014] VSC 293

Weston v Metro Apartments [2002] NSWSC 876

SOLOMON J:

  1. The plaintiff is an incorporated association. The first and second defendants (defendants) are the owners of a residential property in Saffron Loop in the suburb of Falcon. The plaintiff…

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Coco C'Bay Association (Inc) v Paddison [2022] WASC 5
Case
[2022] WASC 5
Decision Date

CaseChat Overview and Summary

The plaintiff, Coco C'Bay Association, sought an extension of a caveat it had lodged over the defendants' property. The defendants, Murray Clive Paddison and Dawn Michelle Eales, opposed the application and argued that the caveat should not be extended as it was not justified. The primary issue for the court was whether the interest claimed in the caveat had or may have substance, such that the caveat should be extended under s 138C(2) of the Transfer of Land Act 1893 (WA). The court found that the Buyer Covenant deed signed by the parties created a charge over the defendants' property, which secured the defendants' obligations under the covenant. The court held that the charge could secure non-monetary obligations and potentially extend to damages flowing from the failure to perform those obligations. Given the importance of the obligations to the plaintiff's interests, the court found that the balance of convenience favoured maintaining the caveat. The court ordered the extension of the caveat until further order of the court.

The main issues were:

1. Whether the interest claimed in the caveat had or may have substance so as to justify the extension of the caveat under s 138C(2) of the Transfer of Land Act.

2. Whether the charge created by the Buyer Covenant deed could secure non-monetary obligations.

3. Whether the balance of convenience favoured maintaining the caveat.

The court found in favour of the plaintiff on all issues, determining that the charge secured not only monetary obligations but also potentially non-monetary obligations and damages for failure to perform those obligations. The court held that the balance of convenience favoured maintaining the caveat, given the importance of the obligations to the plaintiff's interests.

The final orders were that the operation of the caveat be extended until further order of the court. The court invited submissions from the parties in relation to costs.

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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Ratio Decidendi

Legal Principle Established

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