CWN Finance Pty Ltd v Roedel - [2022] WASC 159

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   CWN FINANCE PTY LTD -v- ROEDEL [2022] WASC 159
CORAM:   MASTER SANDERSON
HEARD:   4 MAY 2022
DELIVERED          :   9 MAY 2022
PUBLISHED           :   9 MAY 2022
FILE NO/S:   CIV 1397 of 2022
BETWEEN:   CWN FINANCE PTY LTD
Plaintiff

AND

FRANK JOHANNES ROEDEL
First Defendant

REGISTRAR OF TITLES WESTERN AUSTRALIA
Second Defendant

Catchwords:

Property law - Application to extend caveat - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiff	:	T Pontre
First Defendant	:	Dr S Taylor
Second Defendant	:	No appearance

Solicitors:

Plaintiff	:	Summer Lawyers
First Defendant	:	Chan Galic Barristers & Solicitors
Second Defendant	:	No appearance

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

Nil

MASTER SANDERSON:

By originating summons filed 22 April 2022, the plaintiff sought an extension of a caveat over a property in Redcliffe owned by the first defendant. The caveat which was on the property at the time proceedings were issued was an absolute caveat. During the course of the hearing, counsel for the plaintiff acknowledged the caveat should be a 'subject to claim' caveat. So, in effect, the plaintiff was seeking to vary the caveat and seeking an extension of the caveat as varied. Both parties accepted it was open to the court to make the variation. As I determined the caveat should not be extended, it was not necessary to make a variation order. What follows are my reasons for refusing the extension of the caveat.
The facts were not in dispute. What follows is a summary of the relevant facts as set out in an affidavit of Blake Benjamin Palmer sworn 2 April 2022 and filed in support of the application. Much of what is contained in Mr Palmer's affidavit is inadmissible - he offers conclusion of law about the relevant documents. No objection was taken by counsel for the first defendant to the form of the affidavit. Really, no objection was necessary. What was relevant for the purposes of the hearing were the sequence of events that led to the signing of certain documents and the documents themselves.
On or about 17 February 2022, the plaintiff entered into what is described as a letter of offer of finance with Altair Engineering Services and Construction Pty Ltd (Altair) as borrower and Alfred Benedict and the first defendant as guarantors. I will detail the relevant terms of the letter in due course. In broad terms the plaintiff conditionally offered to lend the sum of $350,000 to Altair.
On or about 11 March 2022, Altair and the guarantors executed formal loan documents which comprised of a mortgage over the Redcliffe property and a document entitled 'Short Form Loan and Security Details'. This document was dated on or about 11 March 2022. A few days later the plaintiff received a letter from the proposed lender saying that for various reasons they would not be proceeding with the loan. Despite that, the plaintiff says under the offer, the guarantors provided an unconditional and irrevocable agreement to pay the plaintiff's fees and costs outlined in the offer. Further, they say the guarantors provided a charge of all their interests in any real or personal property to cover payment of any amount due. They say the offer authorised the plaintiff to engage its lawyers at the guarantors' expense to prepare the loan and security documents necessary to give effect to the anticipated facility. In the end, the plaintiff's claim amounts to something in the region of $25,000.
It is unnecessary to refer in any detail to an affidavit filed by the first defendant and sworn on 2 May 2022. However, it is to be noted that the first defendant provides a valuation of the Redcliffe property which shows a market value of $480,000. The first defendant says, if called upon to do so, he could meet any judgment in an amount sought by the plaintiff.
Clearly the matter turned on the terms and conditions of the offer. The letter itself, after the salutation, reads as follows:
CWN FINANCE PTY LTD (ACN 655 712 753) and/or nominee lending entity (CWN FINANCE) is pleased to arrange for you a loan facility. The primary terms of the loan facility will be detailed as per below.
You should note that after you have accepted this offer and a loan has been arranged, CWN FINANCE PTY LTD will provide you with unconditional terms which will form part of formal loan and security documentation detailing the full terms and conditions of the facility.
For the avoidance of any doubt, the provision of the facility is subject to you passing credit verification and the value of the security that you have offered for the advance being independently verified by the nominated valuers.
Clearly this letter can be regarded as a letter of engagement. It is not an offer of finance, rather it is a two‑stage process. First, the plaintiff is engaged by virtue of the letter to arrange a loan. Second, the loan is to be arranged. Then the matter can proceed to 'formal loan and security documentation'.
Attached to the letter of offer is a document which it is described as 'Offer Summary'. As the title suggests, it summarises the loan which might - not necessarily will - be provided to the first defendant. Adjacent to a marginal note 'Fees and Charges' there appears the following:
If CWN Finance Pty Ltd provides the loan facility on terms commensurate with those set out in this offer, you hereby agree that upon acceptance of this offer you will immediately become liable to pay to CWN Finance Pty Ltd the following fees and charges.
It is clear then the liability for these fees and charges is prospective. If an offer of finance had been made and it was largely consistent with what was anticipated in the offer summary, then the first defendant would have been liable for the plaintiff's fees and charges. It may well have been the case that the plaintiff had a lender in mind. Whether that was the case or whether, when the plaintiff put the proposal to a prospective lender, they decided not to proceed, is beside the point. The fact is no offer was made. Therefore the condition precedent was not satisfied and the liability of the first defendant to the plaintiff was not triggered.
There was no dispute between the parties as to the principles applicable to an extension of caveat. The caveat will not be extended if there is no serious question to be tried. This was a very clear cut case. It was a straightforward question of contractual interpretation. In my view, there was no serious question to be tried and I dismissed the application accordingly.
Subject to hearing from the parties, costs should follow the event. The order I propose is that the plaintiff pay the defendants' costs of the application including reserved costs. Any party wishing to make submissions in relation to costs should do so within seven days of the publication of these reasons.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AH
Associate to Master Sanderson
9 MAY 2022