Cooke Consulting Pty Ltd v Jellie
[2015] WASC 250
•23 JUNE 2015
COOKE CONSULTING PTY LTD -v- JELLIE [2015] WASC 250
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 250 | |
| Case No: | CIV:1895/2015 | 23 JUNE 2015 | |
| Coram: | PRITCHARD J | 23/06/15 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application granted on an interim basis | ||
| B | |||
| PDF Version |
| Parties: | COOKE CONSULTING PTY LTD as Trustee for THE COOKE FAMILY TRUST SELWYN GORDON JELLIE REGISTRAR OF TITLES |
Catchwords: | Caveats Application for extension of caveat Whether possible to lodge caveat over the interest of one joint tenant only Interim extension granted Turns on own facts |
Legislation: | Transfer of Land Act 1893 (WA), s 138C |
Case References: | Apostolos Andreas Shipping Company Ltd v Registrar of Titles (Unreported, WASC, Library No 7884, 6 October 1989) Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 Awadallah v Hymix Australia Pty Ltd [2015] NSWSC 117 Bashford v Bashford [2008] WASC 138 Cassegrain v Gerard Cassegrain & Co Pty Ltd [2015] HCA 2 Mason v Merrett (Unreported, WASC, Library No 7701, 12 June 1989) Paton v Hynes [2011] WASC 106 Perron Investments Pty Ltd v Tim Davies Landscaping Pty Ltd [2009] WASCA 171 Wichniewicz v Registrar of Titles [2014] WASC 18 Yaran Holdings Pty Ltd v Goldsmith 7 Pty Ltd [2014] WASC 171 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
SELWYN GORDON JELLIE
First Defendant
REGISTRAR OF TITLES
Second Defendant
Catchwords:
Caveats - Application for extension of caveat - Whether possible to lodge caveat over the interest of one joint tenant only - Interim extension granted - Turns on own facts
Legislation:
Transfer of Land Act 1893 (WA), s 138C
Result:
Application granted on an interim basis
Category: B
Representation:
Counsel:
Plaintiff : Mr M A Cheveralls
First Defendant : No appearance
Second Defendant : No appearance
Solicitors:
Plaintiff : Douglas Cheveralls Lawyers
First Defendant : No appearance
Second Defendant : No appearance
Case(s) referred to in judgment(s):
Apostolos Andreas Shipping Company Ltd v Registrar of Titles (Unreported, WASC, Library No 7884, 6 October 1989)
Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57
Awadallah v Hymix Australia Pty Ltd [2015] NSWSC 117
Bashford v Bashford [2008] WASC 138
Cassegrain v Gerard Cassegrain & Co Pty Ltd [2015] HCA 2
Mason v Merrett (Unreported, WASC, Library No 7701, 12 June 1989)
Paton v Hynes [2011] WASC 106
Perron Investments Pty Ltd v Tim Davies Landscaping Pty Ltd [2009] WASCA 171
Wichniewicz v Registrar of Titles [2014] WASC 18
Yaran Holdings Pty Ltd v Goldsmith 7 Pty Ltd [2014] WASC 171
- PRITCHARD J:
(This judgment was delivered extemporaneously on 23 June 2015 and has been edited from the transcript.)
1 This is an application made by Originating Summons dated 11 June 2015 by the plaintiff for an order extending the operation of caveat M906595, lodged on 6 February 2015 in respect of the whole of the land in certificate of title vol 1134 folio 166 (159 Flamborough Street, Doubleview, Western Australia (the Doubleview property)) as to the interest of Selwyn Gordon Jellie only, until further order of the Court. The plaintiff's present application to extend the operation of the caveat is made pursuant to s 138C of the Transfer of Land Act 1893 (WA) (the TLA).
2 The plaintiff's application was heard on an urgent basis. There was no appearance on behalf of the first defendant, and the second defendant, the Registrar of Titles, has indicated that she will (with some qualifications), abide by the decision of the Court.
Factual basis for the application to extend the caveat
3 Mr Colin Roy Cooke has sworn two affidavits in support of the application - the first on 11 June 2015, and a supplementary affidavit on 19 June 2015. In his affidavit of 11 June 2015, Mr Cooke deposes that he is the sole director of the plaintiff. He deposes that the plaintiff is, and has been at all material times, the registered proprietor of Unit 13, 9 Parkes Street, Cockburn Central (the Cockburn property). Mr Cooke goes on to say that a company by the name of West Brew Distributors Pty Ltd, as lessee, and the plaintiff, as lessor, entered into a lease dated 12 January 2011 (the Lease Deed) in relation to the Cockburn property,1 and that the first defendant is named as the guarantor in the Lease Deed.
4 Pursuant to cl 16.2(a) of the Lease Deed, the first defendant, as guarantor, agreed to charge, as legal and beneficial owner, 'all freehold interests in any land which the [first defendant] now has or during the currency of [the Lease Deed] may own, with the payment of any Lease Money due and owing to the [plaintiff] by [West Brew Distributors]'. In addition, the first defendant agreed that the lessor may lodge an absolute caveat against any interest in real estate held by the first defendant as equitable chargee,2 and the first defendant consented to the lessor lodging an absolute caveat pursuant to that term of the Lease Deed.3
5 In his affidavit of 11 June 2015, Mr Cooke deposes that payments remain outstanding under the Lease Deed, and that pursuant to cl 16 of the Lease Deed, the plaintiff lodged the caveat over the Doubleview property.
6 The Doubleview property is owned by the first defendant and Ms Yvette Jellie (who appears to be the first defendant's former wife), as joint tenants. As noted at [1], the caveat was described as relating only to the interest of the first defendant (and not Ms Jellie) in the Doubleview property. The interest claimed by the plaintiff in the caveat was as the 'owner of an equitable interest' in the Doubleview property.
7 These proceedings have been commenced because the plaintiff received a notice from the Registrar of Titles dated 3 June 2015 advising that the registered proprietors of the Doubleview property (ie, the first defendant and Ms Jellie) had requested that the Registrar issue a notice under s 138B of the TLA, and that the plaintiff's caveat over of the Doubleview property would lapse on 25 June 2015 unless extended by the Court.
Why the caveat should be extended on an interim basis
8 The principles in relation to applications made pursuant to s 138C of the TLA are well established. They were set out by Beech J in Bashford v Bashford.4 It is not necessary to repeat his Honour's observations here. His Honour's observations must, however, be read in conjunction with some more recent authorities to which I make reference below.
9 In summary, the Court's power to make an order under s 138C(2) of the TLA arises only if the Court is satisfied that the claim by the caveator (that is, as to the interest in land that is claimed in the caveat) has or may have substance, and on that question the caveator bears the onus of demonstrating that there is a serious question to be tried as to whether the interest claimed in the caveat exists. In determining whether to exercise its discretion under s 138C, the Court will also consider where the balance of convenience lies. The existence of a serious question to be tried involves showing a sufficient likelihood of success to justify the preservation of the status quo in all of the circumstances. How strong the likelihood of success needs to be depends upon the nature of the rights asserted and the practical consequences likely to follow from the orders sought.5 Consequently, whether there is a serious question to be tried, and the consideration of those factors going to the balance of convenience, are not wholly independent inquiries.
10 Given the impending expiration of the caveat, and having regard to the matters set out in the affidavits of Mr Cooke to which I have referred, I am satisfied that the plaintiff has established that, for the purposes of this interim application, the claim by the plaintiff as caveator has or may have substance. The creation of an equitable interest in land by the charging of land is well recognised in the authorities.6 I am also satisfied that the balance of convenience favours the extension of the caveat on an interim basis. However, I am mindful of the fact that the disputed quantum of the alleged debt under the Lease Deed (which is the reason for the charge) is a very modest sum.
11 I have also borne in mind the fact that the caveat which has been applied to the Doubleview property is an absolute caveat. The question of whether an absolute caveat is the appropriate type of caveat in all the circumstances is a matter on which I will hear further submissions when the application is listed for further hearing following notification to the other parties.
12 For the reasons I have given above, in all of circumstances it is appropriate to extend the caveat on an interim basis.
Other observations
13 There are, however, two issues which have caused me some concern in the present case. The first has arisen from the fact that the Doubleview property is owned by the first defendant and Ms Jellie as joint tenants. A number of authorities have considered the question of whether it is possible to caveat the interest in a property of only one joint tenant. Whilst there are some older decisions of this Court that suggest that it is not possible to do so,7 more recent decisions of the New South Wales Supreme Court suggest that it is possible to lodge a caveat over land owned by one or more joint tenants, which protects the interest of a caveator, and applies to the interest of only one of the joint tenants. The authorities also make it clear that any such caveat must be appropriately framed to achieve that outcome. In particular, I note the discussion of the authorities by McDougall J in Awadallah v Hymix Australia Pty Ltd.8 The observations made in those New South Wales authorities to which McDougall J refers appear to me to be consistent with the observations made by the High Court in the recent decision of Cassegrain v Gerard Cassegrain & Co Pty Ltd,9 as to the nature of a joint tenancy in land.
14 I am, therefore, satisfied that the caveat, limited as it is to the interest of the first defendant only in the Doubleview property, may continue in operation so as to protect the plaintiff's equitable interest in that land to that extent.
15 The second issue which has caused me some concern is the position of the other joint tenant, Ms Jellie. Ms Jellie is not named as a party to the present application. On a strict view of the legal position, perhaps she need not be.10 However, the position of the co-joint tenant whose interest in the Doubleview property is not the subject of an equitable charge and is not technically encumbered by the caveat is, nevertheless, very significantly affected, in a practical sense, by the caveat over the land.11 In those circumstances I propose to make an order requiring the plaintiff to provide formal notice to Ms Jellie advising her of the proceedings and giving her the opportunity to be heard before any determination is made at a future hearing as to whether the caveat should continue in operation.
Application for substituted service
16 There is one further matter which needs to be addressed. I determined to hear the present application and to extend the caveat on an interim basis on the understanding that the first defendant had had informal notice of these proceedings because solicitors who appeared to be acting for him as at 15 June 2015 had been provided with copies of the relevant documentation. Immediately after delivering the reasons set out above it was drawn to my attention that the plaintiff had not formally served the first defendant with a copy of the Originating Summons and the affidavits in support. The Court was informed by counsel for the plaintiff of more recent correspondence that suggests that there may be a doubt as to whether the solicitors provided with copies of those documents are in fact acting for the first defendant on an ongoing basis.
17 Counsel for the plaintiff has now made an application for substituted service on the first defendant of the Originating Summons and the affidavits in support. In support of that application the plaintiff's counsel has relied on an affidavit of Mr Ian Brent-White, sworn 17 June 2015. Mr Brent-White is a process server and deposes to unsuccessful attempts to serve the first defendant at various addresses, including the Doubleview property. It appears that the process server was advised by Ms Jellie (who was at the Doubleview property at the time the process server attended) that she was not in possession of the first defendant's contact details. Accordingly, it would seem that service of the first defendant by leaving the documents at the Doubleview property would not be an adequate form of service.
18 Having regard to the requirements of O 72 r 4 of the Rules of the Supreme Court 1971 (WA), I am satisfied that personal service of the documents in these proceedings on the first defendant will be impractical as it does not appear that any contact details are available, or that any information can be obtained by the plaintiff as to the first defendant's present whereabouts. Although the material on which the plaintiff's substituted service application was based was not wholly reflected in the affidavit sworn by Mr Brent-White, I am satisfied that the preferable and appropriate means for substituted service will be to require service of the documents on the first defendant by leaving those documents with the solicitors who, up until now, appear to have been acting on his behalf and are still apparently in contact with him. I propose to make an order to that effect.
1 A copy of the Lease Deed is annexed to Mr Cooke's affidavit sworn 11 June 2015 as attachment 'CRC01'.
2 cl 16.2(b) of the Lease Deed.
3 cl 16.2(c) of the Lease Deed.
4Bashford v Bashford [2008] WASC 138 [42] - [56].
5Perron Investments Pty Ltd v Tim Davies Landscaping Pty Ltd [2009] WASCA 171 [42] - [44] (Newnes JA), referring to Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57, 82.
6Yaran Holdings Pty Ltd v Goldsmith 7 Pty Ltd [2014] WASC 171 [70] (Allanson J); Wichniewicz v Registrar of Titles [2014] WASC 18 [13] (Edelman J); and Paton v Hynes [2011] WASC 106 [4] (Sleight C).
7Apostolos Andreas Shipping Company Ltd v Registrar of Titles (Unreported, WASC, Library No 7884, 6 October 1989) (White M); and Mason v Merrett (Unreported, WASC, Library No 7701, 12 June 1989) (Franklyn J).
8Awadallah v Hymix Australia Pty Ltd [2015] NSWSC 117 [29]ff.
9Cassegrain v Gerard Cassegrain & Co Pty Ltd [2015] HCA 2 [44] - [50].
10Awadallah v Hymix Australia Pty Ltd [2015] NSWSC 117 [48] - [50].
11Awadallah v Hymix Australia Pty Ltd [2015] NSWSC 117 [50].
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