Degois v Manager Complex Dealings Landgate
[2021] WASC 230
•14 JULY 2021
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: DEGOIS -v- MANAGER COMPLEX DEALINGS LANDGATE [2021] WASC 230
CORAM: ACTING MASTER STRK
HEARD: 15 JUNE 2021
DELIVERED : 15 JUNE 2021
PUBLISHED : 14 JULY 2021
FILE NO/S: CIV 1505 of 2021
BETWEEN: MICHELLE TERESA DEGOIS
Applicant
AND
MANAGER COMPLEX DEALINGS LANDGATE
Defendant
Catchwords:
Property law – Application for extension of caveat – Turns on own facts
Legislation:
Transfer of Land Act 1893 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Defendant | : | No appearance |
Solicitors:
| Applicant | : | In Person |
| Defendant | : | No appearance |
Case(s) referred to in decision(s):
Bride v The Registrar of Titles [2015] WASC 11
ACTING MASTER STRK:
By an originating summons filed on 8 June 2021, the plaintiff sought to extend the operation of a caveat. The application was listed for hearing on an urgent basis on 15 June 2021. At the conclusion of the hearing, I informed the plaintiff that I would dismiss the application and gave brief reasons. As the plaintiff appeared in person, I indicated that I would publish my reasons for decision which I now set out below.
The application
By the originating summons, the plaintiff sought an order restraining the 'Registrar of Landgate' from removing a caveat, which the plaintiff described as caveat number 0744947. The plaintiff sought to join the 'Manager Complex Dealings Landgate' to the proceeding as defendant.
On 9 June 2021, the plaintiff wrote to the Principal Registrar seeking an urgent hearing on the basis that her caveat that would lapse on 17 June 2021. The letter was accepted for filing as a certificate of urgency. The application was supported by an affidavit sworn by the plaintiff and filed on 9 June 2021.
Evidentiary foundation
The plaintiff deposed to having entered into an oral agreement with Ms Leila Maria Rodrigues Baptisa to lend her $5,000 in March 2019, which amount was to be repaid to the plaintiff within six months. The plaintiff further deposed to the circumstances whereby Ms Baptisa came to withdraw a further $2,000 from the credit account of the plaintiff. The plaintiff deposes to her having requested repayment of the amount of $7,000 from Ms Baptisa, which requests were ignored.
Default judgment was entered in the Magistrates Court in the amount of $7,253.10 against Ms Baptisa (described as Ms Leila Maria Rodrigues in the default judgment) in favour of the plaintiff. Annexed to the plaintiff's affidavit and marked 'B' is a copy of the order for default judgment made by the Magistrates Court on 24 August 2020 in the plaintiff's favour.
The plaintiff further deposed as follows:
6. As the defendants refused to pay the outstanding debt, I had no option but to file a Caveat on a block of land the parties have an equitable interest….
7. I acknowledge first mortgagee ANZ Bank has a major equitable interest in the property and acknowledge their application for TLA s 138B. However I understand there is some balance of funds available to the defendants Leila Rodrigues Baptisa and Paulo Baptisa, after the payout to ANZ bank.
8. I rang the ANZ and informed them that I'm willing to remove the Caveat 0744947, if they can inform me if there is any funds available to the defendants, if so I can seek a court order informing the settlement agency to transfer the amount owed to me by the defendants, only to be informed that it is a private & confidential matter and ANZ does not disclose any information of their clients.
…
10. I am willing to remove the Caveat if the ANZ informs me there are no funds available to defendants after the sale of the property.
The plaintiff did not annexe to her affidavit a copy of her caveat, nor did she annexe a copy of the relevant certificate of title. Annexed to the affidavit of the plaintiff and marked 'A' is simply a copy of the notice addressed to the plaintiff issued pursuant to the Transfer of Land Act 1893 (WA) s 138B. The notice concerns land described as Lot 44 on deposited plan 70431, volume 2778 folio 327 (the Land).
The notice reveals that the plaintiff had lodged a caveat, known as caveat number O168562, as to the half share of Paulo Jorge Lay Baptista and Michelle Teresa Baptisa only. The notice sent pursuant to the Transfer of Land Act s 138B appears on its face to have been issued at the request of Carla Maria Rodrigues, Paulo Jorge Lay Baptista and Michelle Teresa Baptisa, by the mortgagee in possession of the Land, Australia & New Zealand Banking Group Ltd. The application to remove the caveat appears on the face of the notice to have been given application number O744947. (It appears that the plaintiff confused the caveat number and the application number in her preparation of the originating summons.)
The applicable principles
The general principles relating to the extension of a caveat under the Transfer of Land Act s 138C are well established. They were summarised by Edelman J in Bride v The Registrar of Titles as follows:[1]
[1] Bride v The Registrar of Titles [2015] WASC 11 [11] - [16] (footnotes omitted).
Section 137 of the Transfer of Land Act 1893 (WA) enables a beneficiary or other person claiming an estate or interest in land to lodge a caveat. Section 138C(2) provides for the Supreme Court's powers when a caveator applies to the Supreme Court for an order extending the operation of a caveat, as follows:
(2) On the hearing of an application under subsection (1), the Supreme Court -
(a) if satisfied that the caveator's claim has or may have substance -
(i)may make an order extending the operation of the caveat for such period as is specified in the order; or
(ii) may make an order extending the operation of the caveat until the further order of the court; or
(iii) may make such other orders as it thinks fit concerning the caveat or the land in respect of which the caveat was lodged;
and
(b) if not satisfied that the caveator's claim has or may have substance, shall dismiss the application; and
(c) may make such ancillary orders in relation to the application as it thinks fit.
In assessing whether to grant the extension of the caveat the two broad issues are (1) whether the caveator's claim in respect of the estate or interest in land 'has or may have substance' and (2), whether the balance of convenience favours the retention of the caveat and the appropriate orders to be made.
The first issue is whether the caveator's claim in respect of the estate or interest in land 'has or may have substance'. This is sometimes expressed as whether the caveator can show that there is a serious question to be tried, or whether the caveator can prove a prima facie case. In assessing whether the caveator has proved that the claim has, or may have substance, the court does not ordinarily evaluate the applicant's evidence or undertake a preliminary trial.
The requirement that the caveator's claim of substance be in respect of a claim of an 'estate or interest in land' has been held to mean that the claim must concern a proprietary interest in land.
The second issue is the balance of convenience in extending the caveat. The court considers the balance of convenience when it decides whether to exercise its discretion to extend the caveat. The balance of convenience is not independent of the strength or weakness of the caveator's claim. Rather, the apparent strength or weakness of the case for relief at trial is a relevant consideration on the balance of convenience.
An important factor in considering the balance of convenience is if the failure to extend a caveat will have the effect of destroying, or substantially impairing, the benefit of the proprietary interest which is claimed.
I adopted and applied these principles in determining the plaintiff's application.
Disposition
The plaintiff was not represented at the hearing and did not have the benefit of legal assistance in preparing the application. Given the plaintiff's lack of legal knowledge, it was appropriate that some flexibility and allowance be made at the hearing in order to identify the true substance of the claim the plaintiff, as caveator, sought to present.
The affidavit evidence filed by the plaintiff in support of her application did not reveal a proprietary interest in the Land. At the hearing of the application I asked the plaintiff whether any agreement had been reached with Ms Baptisa to secure the amount owed to the plaintiff. In particular, I asked whether any agreement had been reached to charge the Land as security for the amount lent to Ms Baptisa. The plaintiff confirmed that there was not. The plaintiff confirmed that no agreement had been made with Ms Baptisa which contemplated the plaintiff lodging a caveat over the Land. By her caveat, the plaintiff did not in fact seek to claim that she held an equitable or legal interest in the Land. Rather, the plaintiff sought through the caveat to recover the debt owed to her by Ms Baptisa, who did have an interest in the Land.
In considering the plaintiff's application, the question I was required to answer was whether the plaintiff's claim (as caveator) has or may have substance. On the affidavit evidence, it was not possible to so conclude. There was no evidentiary foundation to support a finding that the plaintiff held an equitable or legal interest in the Land. In all of the circumstances, I concluded that the plaintiff had not discharged her onus and had not shown a sufficient likelihood of success in her claim of a proprietary interest in the Land to justify the continuation of the caveat.
In all of the circumstances, having regard to the affidavit evidence and to the concessions made by the plaintiff at the hearing, I concluded that there was no utility in affording the plaintiff an opportunity to file a further affidavit in support of her application; to order that she file an amended originating process joining the proper parties or citing the correct caveat number; or to ask the plaintiff whether she would be willing to proffer an undertaking as to damages.
Having concluded that I was not satisfied that the plaintiff's claim has or may have substance, it was not necessary for me to consider the balance of convenience. It was appropriate that the application be dismissed with no order as to costs.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
MH
Associate to Justice Strk
14 JULY 2021
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