Egan v Christina Margaret Chugg as Executor of the Will of Roy McKenzie Paton
[2005] WASC 170 (S)
•25 NOVEMBER 2005
EGAN & ORS -v- CHRISTINA MARGARET CHUGG as Executor of the Will of ROY MCKENZIE PATON & ANOR [2005] WASC 170 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 170 (S) | |
| 25/11/2005 | |||
| Case No: | CIV:1008/2005 | 7 APRIL 2005 | |
| Coram: | JENKINS J | 5/08/05 | |
| 19/08/05 | |||
| 7 | Judgment Part: | 1 of 1 | |
| Result: | First defendant liable to pay the plaintiffs' costs of the application to extend the caveat Order for extension of the caveat conditional upon the plaintiffs giving the usual undertaking as to damages | ||
| B | |||
| PDF Version |
| Parties: | MARC DOUGLAS EGAN CINDY MARIA MARTHER JOHNS GLENN ANDREW CARPENTER CHRISTINA MARGARET CHUGG as Executor of the Will of ROY MCKENZIE PATON REGISTRAR OF TITLES |
Catchwords: | Caveats Extension of caveat Whether successful caveators entitled to order for costs Caveats Extension of caveat Whether extension should be ordered upon caveators giving usual undertaking as to damages |
Legislation: | Supreme Court Rules, O 66 r 1 Transfer of Land Act 1893 (WA), s 138, s 140 |
Case References: | Hunt v McKay, unreported; FCt SCt of WA; Library No 9140; 7 November 1991 J & H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546 Martyn v Glennan [1972] 2 NSWLR 234 Tiverton Estates Ltd v Wearwell Ltd [1975] Ch 146 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
DECISION : 19 AUGUST 2005 FILE NO/S : CIV 1008 of 2005 MATTER : Section 138C of the Transfer of Land Act 1893 BETWEEN : MARC DOUGLAS EGAN
- CINDY MARIA MARTHER JOHNS
GLENN ANDREW CARPENTER
Plaintiffs
AND
CHRISTINA MARGARET CHUGG as Executor of the Will of ROY MCKENZIE PATON
First Defendant
REGISTRAR OF TITLES
Second Defendant
(Page 2)
Catchwords:
Caveats - Extension of caveat - Whether successful caveators entitled to order for costs
Caveats - Extension of caveat - Whether extension should be ordered upon caveators giving usual undertaking as to damages
Legislation:
Supreme Court Rules, O 66 r 1
Transfer of Land Act 1893 (WA), s 138, s 140
Result:
First defendant liable to pay the plaintiffs' costs of the application to extend the caveat
Order for extension of the caveat conditional upon the plaintiffs giving the usual undertaking as to damages
Category: B
Representation:
Counsel:
Plaintiffs : Mr P Mendelow
First Defendant : Mr G A Rabe
Second Defendant : No appearance
Solicitors:
Plaintiffs : James Ride
First Defendant : Scott & Kaminickas
Second Defendant : No appearance
Case(s) referred to in judgment(s):
Hunt v McKay, unreported; FCt SCt of WA; Library No 9140; 7 November 1991
J & H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546
(Page 3)
Martyn v Glennan [1972] 2 NSWLR 234
Tiverton Estates Ltd v Wearwell Ltd [1975] Ch 146
Case(s) also cited:
Nil
(Page 4)
1 JENKINS J: On 5 August 2005 I delivered my reasons for allowing the plaintiffs' application to extend a caveat. Two issues have arisen for my determination as a consequence of that decision. The first issue is whether or not the order extending the caveat should be conditioned upon the plaintiffs giving the usual undertaking as to damages. The first defendant has submitted that it would be appropriate that such an order be made on the basis of the practice direction that has been issued by the Court in respect to interlocutory injunctions. The practice direction dated 3 October 1975 says that the usual undertaking as to damages given in respect to an interlocutory injunction will usually also be required to be given upon the extension of a caveat.
2 The practice direction was issued prior to s 140 being inserted into the Transfer of Land Act 1893 (WA). Section 140 says that any person lodging a caveat with the Registrar without reasonable cause shall be liable to make to any person who may have sustained damage thereby such compensation as a Judge on a summons in chambers shall deem just and order.
3 The restriction contained in s 140 is that compensation is not payable unless the caveat is lodged without reasonable cause. It does not cover compensation for a caveat that is lodged with reasonable cause but is ultimately found to be unsustainable.
4 The usual undertaking as to damages in interlocutory injunctions is required in exchange for the Court giving the party the indulgence of the injunction. It seems to me to be reasonable in the circumstances of this case to require the plaintiffs to give an undertaking as to damages and I am prepared to so order.
5 Now I turn to the second issue, that of costs of the application to extend the caveat. The plaintiffs have applied for an order that the first defendant pay their costs of the application. The first defendant opposes the application for costs.
6 Pursuant to O 66 r 1 of the Supreme Court Rules, I have a discretion to make an order for costs as I think are fair and just in the circumstances. The general rule is that a successful party to a matter is entitled to a costs order in their favour.
7 Hunt v McKay, unreported; FCt SCt of WA; Library No 9140; 7 November 1991, was an appeal by a proprietor of land who had brought proceedings under of the Transfer of Land Act 1893, s 138 requiring a caveator to show cause why a caveat should not be removed. The
(Page 5)
- proprietor was successful and the Court ordered that the caveat be removed. The proprietor was denied an order for costs but successfully appealed from that decision. In the course of his judgment, Seaman J said at page 7:
"A successful party should only be deprived of his costs if he has done something connected with the institution or the conduct of the suit, or has done some wrongful act in the course of the transaction the subject of the suit: Ritter v Godfrey [1920] 2 KB 47 at 60,61."
9 The first defendant says that if they had done that and been successful, costs would have been reserved to the trial Judge and in the circumstances of this case in all likelihood the costs would have been denied to them at trial. In this way the ultimate success of the application for costs in respect to interlocutory relief in the course of the application for specific performance would have depended to a large extent upon whether the plaintiffs were successful in the main action.
10 Another matter that the first defendant has raised is the plaintiffs' conduct in refusing what is said to be a reasonable offer by the first defendant to resolve the issue between the parties and instead lodging the caveat. It is said that this conduct should justify a denial of a costs order in the plaintiffs' favour. I now turn to the resolution of these issues.
11 I do not deny that there is some merit in the first defendant's submissions, but after careful consideration of the parties' oral and written arguments I have decided that the plaintiffs ought to have their costs of this application. The main reasons I have come to this conclusion are first, the application of the general rule that a successful party is, in the usual situation, entitled to a costs order in their favour. Secondly, an application for an extension of a caveat is a distinct matter. The Transfer of Land Act 1893 (WA) envisages that applications of this kind will be brought as a separate application. In my experience, having dealt with a
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- number of such applications and read many more decisions with respect to them, that is the way in which they are brought and prosecuted.
12 Thirdly, the plaintiffs have been successful on the application and it cannot, therefore, be held against them that they chose to proceed by way of caveat proceedings rather than an application for an interlocutory injunction. I appreciate that the first defendant's position is that the issue before the court is not whether the plaintiffs have a caveatable interest on the basis of the contract but whether in fact the plaintiffs have a contract at all.
13 Nonetheless, the plaintiffs' position always has been that they have a valid contract. I have found that there is, on the basis of their arguments, a serious issue to be tried as to whether the plaintiffs have a caveatable interest. As I said, it therefore seems to me that it cannot be held against them that they have proceeded by way of caveat proceedings rather than by way of an application for an interlocutory injunction in the specific performance proceedings.
14 Fourthly, I acknowledge that there was a delay in the institution of the proceedings for specific performance. There should not have been such a delay. In any event the delay has not affected the merits of the application for the caveat.
15 Fifthly, whilst there are many authorities, Tiverton Estates Ltd v Wearwell Ltd [1975] Ch 146 and Martyn v Glennan [1972] 2 NSWLR 234 being but two of them, which state that the principles applicable in caveat proceedings are those applicable in applications for interlocutory injunctions, so far as I am aware none of those cases deal specifically with the issue of costs and say that the principles are the same in respect to costs.
16 Just because it has been said that a caveat is a statutory injunction and that the applicable substantive principles are the same in respect to an application for an extension of a caveat and an application for an interlocutory injunction does not mean that they are the same in all respects. In J & H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546 at 552, Barwick CJ said that the purpose of a caveat is to act as an injunction to the Registrar General to prevent registration of dealings with the land until notice has been given to the caveator so that the caveator can take action against the person lodging a dealing for registration. Two other Justices agreed with his Honour and a fourth, Windeyer J, expressed himself in similar terms.
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17 Consequently, a caveat serves a different function to an interlocutory injunction. It is not imposed in order to maintain the status quo between the two parties to an action, although it may have that effect. Consequently, it does not seem to me that the principles as to costs relevant to interlocutory injunctions apply mutatis mutandis to an application for an extension of a caveat.
18 The sixth point I would make is that the first defendant put a positive case to the Court and it was unsuccessful. Even if she is ultimately successful at trial as to the legal issues she has raised the result will not alter the fact that the plaintiffs were successful in this application, on the application of the statutory test for the extension of a caveat.
19 Lastly, in respect to the conduct of the plaintiffs in refusing the offer made by the first defendants, it seems to me that in any event the plaintiffs were entitled to a caveat to protect their interest until settlement occurred. It may well be that their refusal to accede to the offer has extended the date for final settlement, but I am now told that the first defendant has not made or has withdrawn the application for possessory title for the lot that is not in the first defendant's name. Consequently, it is at the very least unclear to me that the offer made on 28 September 2004 would have resolved the issues between the parties in any event. The plaintiffs' refusal to accept that offer does not warrant them being denied their costs in respect to this application.
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