JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: COMO -v- HELMERS [2011] WASC 179
CORAM: CORBOY J
HEARD: 13, 22, 29 JUNE, 18 & 20 JULY 2011
DELIVERED : 28 JULY 2011
PUBLISHED : 29 JULY 2011
FILE NO/S: CIV 2002 of 2011
MATTER :Section 138C of the Transfer of Land Act 1893
BETWEEN: MICHAEL BERND COMO
Plaintiff
AND
HELGA-EVA HELMERS
First DefendantTHE REGISTRAR OF TITLES
Second Defendant
Catchwords:
Caveats - Whether caveatable interest by testamentary contract or proprietary estoppel by encouragement or promissory estoppel - Discretion to amend caveat - Turns on own facts
Legislation:
Transfer of Land Act 1893 (WA), s 137, s 138
Result:
Application to extend operation of caveat dismissed
Category: B
Representation:
Counsel:
Plaintiff: Mr C P Stokes
First Defendant : Mr A J Aristei
Second Defendant : No appearance
Solicitors:
Plaintiff: Chris Stokes & Associates
First Defendant : Corser & Corser
Second Defendant : No appearance
Case(s) referred to in judgment(s):
Austotel Pty Ltd v Franklin's Self‑Serve Pty Ltd (1989) 16 NSWLR 582
Bell Group Ltd (In Liq) v Westpac Banking Corporation (No 9) (2008) 39 WAR 1
Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153
Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42
Delaforce v Simpson‑Cook [2010] NSWCA 84
Donis v Donis (2007) 19 VR 577
Giumelli v Giumelli (1999) 196 CLR 101
Glass v Glass (Unreported, WASC, Library No 950229, 16 May 1995)
J & H Just Holdings Pty Ltd v Bank of New South Wales (1971) 125 CLR 546
Jandric v Jandric [1999] WASC 22
Legione v Hateley (1983) 152 CLR 406
Meynert v Leafdale Pty Ltd [2005] WASC 102
Midland Brick Co Pty Ltd v Welsh [2006] WASC 122
National Australia Bank v McCourt [2010] WASC 237
Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306
Palagiano v Mankarios [2011] NSWSC 61
Palazzo Homes Pty Ltd v Goh [2010] WASC 407
Porter v McDonald [1984] WAR 271
Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466
Sullivan v Sullivan [2006] NSWCA 312
Thorner v Major [2009] 3 All ER 945
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
CORBOY J:
(These reasons were delivered orally on 28 July 2011 and have been edited.)
Introduction
The plaintiff, Mr Como, and the first defendant, Ms Helmers, are brother and sister. They were born in Germany; Ms Helmers in 1942 and Mr Como in 1946. Ms Helmers' father died during WW II.
In 1949, Mr Como and Ms Helmers emigrated to Australia with their mother, Alice Rose Emme, and her then husband. Ms Helmers returned to Germany in 1967 and has resided there since that time.
The late Ms Emme subsequently divorced her husband and in about 1961, she became the registered proprietor of lot 185 on plan 2833, being all that land comprised in Certificate of Title vol 1017 folio 305 and being land situated at 125 Coode Street, South…
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- AGLC
- Como v Helmers [2011] WASC 179
- Case
- [2011] WASC 179
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether Mr Como had established a prima facie case that he had an estate or interest in the South Perth property, which would have justified an extension of the caveat. Additionally, the court had to determine whether Mr Como's undertaking as to damages was adequate, and whether Mr Como should be ordered to pay costs on an indemnity basis. The court considered the principles established in Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42 in assessing the balance of convenience in relation to the caveat.
The court found that Mr Como had not established a prima facie case that he had an estate or interest in the land, and therefore, the balance of convenience did not favour the extension of the operation of the caveat. However, the court did accept that Mr Como's undertaking as to damages was adequate. The court also rejected Ms Helmers' application for indemnity costs, but granted her leave to make a further application seeking a special costs order. The court found that Mr Como should be ordered to pay costs of the originating summons without reference to the limits provided for in the Legal Practitioners (Supreme Court) (Contentious Business) Report and Determination 2010.
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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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
I would have concluded that the balance of convenience favoured the extension of the operation of the caveat had I found that Mr Como had established a prima facie case that he had an estate or interest in the South Perth property. That is for the reasons explained by Owen J in Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42. Further, it was accepted that Mr Como's undertaking as to damages was adequate in the context of any possible claim against Ms Helmers for breach of the contract for the sale of the property. However, I would have imposed conditions on any order extending the operation of the caveat requiring Mr Como to immediately commence proceedings to establish his claim to the property and for those proceedings to be expedited. Mr Como and Ms Helmers are brother and sister. By her will, their late mother devised and made a gift and bequest of land located in South Perth to Ms Helmers. Ms Helmers became the registered proprietor of the land in January 2010. Mr Como lodged a caveat over the land in March 2011. The Registrar of Titles sent a notice under s 138B of the Transfer of Land Act 1893 (WA) to Mr Como in May 2011. Mr Como commenced proceedings by originating summons in June 2011 seeking an order extending the operation of the caveat until further order of the court. An ex parte order extending the caveat was made. A hearing between the parties was subsequently held at which Mr Como's application to further extend the operation of the caveat was dismissed: Como v Helmers [2011] WASC 179. Mr Como's application was strictly an interlocutory application. However, it was heard a few days before a contract for the sale of the land was due to be settled. In the circumstances, the parties treated the hearing of Mr Como's application for a further extension of the caveat as, in effect, the final hearing of his originating summons. Mr Como had not commenced other proceedings to vindicate any claim that he might have had to an estate or interest in the land. Ms Helmers sought the costs of the application. Mr Como accepted at the hearing of Ms Helmers' application that he was obliged to pay her costs. He also accepted that the originating summons should be dismissed and that the costs order should be for the costs of the summons and not just the interlocutory application that had been determined in favour of Ms Helmers (ts 112; the originating summons was subsequently dismissed by consent on 18 October 2011). However, Ms Helmers contended that Mr Como should be ordered to pay costs assessed on an indemnity basis. That contention was opposed by Mr Como. Ms Helmers' application for indemnity costs was rejected. However, she was given leave to make a further application seeking a special costs order. These are my reasons for making such an order. Ms Helmers seeks an order that Mr Como pay her costs of the originating summons without reference to the limits provided for at item 10(a) and item 11 of the Legal Practitioners (Supreme Court) (Contentious Business) Report and Determination 2010 (the Costs Determination).