FARE & ANOR -v- BORAL FORMWORK & SCAFFOLDING PTY LTD [2004] WASC 220

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASC 220
Case No:	CIV:1367/2004	Heard:	6 SEPTEMBER 2004
Coram:	MASTER NEWNES	Delivered:	22/10/04
No of pages:	13	Judgment Part:	1 of 1
Result:	Application to remove caveat dismissed
Category:	B
PDF Version

Parties:	MARK GREGORY FARE NATALIE JOY FARE BORAL FORMWORK & SCAFFOLDING PTY LTD (ACN 004 284 806)
Catchwords:	Real property Caveat Application for caveator to show cause Guarantee charging land for money owing for goods and services supplied on credit Whether applies to money owing for hire of equipment Whether entitlement to lodge caveat only arises on default by creditor Turns on own facts
Legislation:	Transfer of Land Act 1893 (WA), s 138
Case References:	Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42 Deputy Commissioner of Taxation v Corwest Management Pty Ltd [1978] WAR 129 Fisher v Raven [1964] AC 210 Kylsilver Pty Ltd v One Australia Pty Ltd [2001] NSWSC 611 Porter v McDonald [1984] WAR 271 R v Brown (1991) 1 Qd R 221 R v Jones [1898] 1 QB 119 Tilley v Official Receiver in Bankruptcy (1960) 103 CLR 529 Walsh v Palladium Carpark [1975] VR 949 White & Anor v Australian and New Zealand Theatres Ltd (1943) 67 CLR 266 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : FARE & ANOR -v- BORAL FORMWORK & SCAFFOLDING PTY LTD [2004] WASC 220 CORAM : MASTER NEWNES HEARD : 6 SEPTEMBER 2004 DELIVERED : 22 OCTOBER 2004 FILE NO/S : CIV 1367 of 2004 MATTER : Section 138 of the Transfer of Land Act 1893 (WA) BETWEEN : MARK GREGORY FARE

First Plaintiff

NATALIE JOY FARE

Second Plaintiff

AND

BORAL FORMWORK & SCAFFOLDING PTY LTD (ACN 004 284 806)

Defendant

Catchwords:

Real property - Caveat - Application for caveator to show cause - Guarantee charging land for money owing for goods and services supplied on credit - Whether applies to money owing for hire of equipment - Whether entitlement to lodge caveat only arises on default by creditor - Turns on own facts

Legislation:

Transfer of Land Act 1893 (WA), s 138

(Page 2)

Result:

Application to remove caveat dismissed

Category: B

Representation:

Counsel:

First Plaintiff : Ms P M V Edward

Second Plaintiff : Ms P M V Edward

Defendant : Mr C K K Ko

Solicitors:

First Plaintiff : Verschuer Edward

Second Plaintiff : Verschuer Edward

Defendant : Brickhills

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

Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42
Deputy Commissioner of Taxation v Corwest Management Pty Ltd [1978] WAR 129
Fisher v Raven [1964] AC 210
Kylsilver Pty Ltd v One Australia Pty Ltd [2001] NSWSC 611
Porter v McDonald [1984] WAR 271
R v…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] WASC 220
Decision Date

CaseChat Overview and Summary

The matter before the Supreme Court of Western Australia was an application by Mark and Natalie Fare, the plaintiffs, to remove a caveat lodged by Boral Formwork and Scaffolding Pty Ltd (the defendant) against their property. The dispute arose from an agreement between Millennium Hire Pty Ltd (controlled by the plaintiffs) and the defendant for the hire of plant and equipment, secured by a guarantee executed by the plaintiffs. The defendant lodged the caveat, asserting a caveatable interest in the property based on the guarantee. The plaintiffs contended that the defendant had no caveatable interest and sought an order to remove the caveat.

The primary legal issue before the court was whether the defendant had a caveatable interest in the plaintiffs' property, and if so, whether the defendant was entitled to maintain the caveat. The court considered whether the guarantee extended to the hire of equipment and whether the defendant's entitlement to lodge the caveat depended on Millennium being in default.

The court found that it was arguable that the guarantee extended to the hire of equipment, which could be considered a supply of goods or services on credit. The court also determined that the defendant's entitlement to lodge the caveat arose either when the guarantee was signed or once Millennium became indebted to the defendant, regardless of whether Millennium was in default. The court concluded that there was a triable issue as to whether the defendant was entitled to maintain the caveat, and the application to remove the caveat was dismissed.

The court's reasoning highlighted the importance of the guarantee's terms and the need to consider extrinsic evidence to determine the meaning of ambiguous terms. The court emphasized that the decision to remove a caveat should only be made if it is patently clear that the estate or interest sought to be protected cannot be made out. The case underscores the need for careful interpretation of guarantees and the potential consequences of providing such security.

Orders