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Coco C'Bay Association (Inc) v Paddison

Coco C'Bay Association (Inc) v Paddison

Case [2022] WASC 5 12 January 2022

Caveat

Charge

Obligations Running with the Land

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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:

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…

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 Coco C'Bay Association (Inc) v Paddison

Details

AGLC: 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