Farrell v Registrar of Titles - [2009] WASC 128

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: FARRELL -v- REGISTRAR OF TITLES [2009] WASC 128

CORAM: KENNETH MARTIN J

HEARD: 24 APRIL 2009

DELIVERED : 28 APRIL 2009

PUBLISHED : 11 MAY 2009

FILE NO/S: CIV 1726 of 2009

BETWEEN: CAROL ELIZABETH FARRELL
Plaintiff
AND
REGISTRAR OF TITLES
First Defendant
CARPAOLO NOMINEES PTY LTD (ACN 009 608 093)
Second Defendant

Catchwords:

Real property - Caveat lapsing - Caveat of registered proprietor to prevent improper dealings - Originating summons issued by person under disability without next friend - Public Trustee appointed next friend - No orders to extend caveat

Legislation:

Transfer of Land Act 1893 (WA), s 138B, s 138C
Guardianship and Administration Act 1990 (WA)

Result:

No order extending caveat

Category: B

Representation:

Counsel:

Plaintiff:     In person
First Defendant              :     No appearance
Second Defendant         :     Mr C S Williams
Amicus Counsel            :     Mr B W Ashdown

Solicitors:

Plaintiff:     In person
First Defendant              :     No appearance
Second Defendant         :     Solomon Brothers
Amicus Counsel            :     Public Trustee (WA)

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

Farrell v Allregal Enterprises Pty Ltd [No 2] [2009] WASC 65

KENNETH MARTIN J: (This judgment was delivered extemporaneously on 28 April 2009 and has been edited from the transcript.)
Proceedings were commenced by originating summons filed on 20 April 2009 by Mrs Carol Elizabeth Farrell. Essentially they seek on behalf of Mrs Farrell, an order resisting what is referred to as the defendant's application - and the defendant in the action is the Registrar of Titles - to extend and prevent caveat K502779 over Mrs Farrell's property at 6 Muston Grove, Churchlands, being lot 240, diagram 84869, volume 1980, folio 69, from lapsing at midnight on 30 April 2009. The originating summons continues:
Instead the plaintiff seeks to obtain a Supreme Court order extending the operation of the said caveat, K502779, in the manner required under the Transfer of Land Act, section 138B subsection (2).
Accordingly, the plaintiff commences these proceedings, in person. That in itself gives rise to difficulties, for reasons I will explain. On 20 April 2009, a certificate of urgency was signed by Mrs Farrell. It says:
Caveat K502779 is my own caveat and protects my purchase of a property at 6 Muston Grove, Churchlands, WA, 6018.
It continues:
My caveat will lapse at midnight on 30 April 2009 pursuant to the Transfer of Land Act 1893, section 138B, unless an order to the contrary is made. Without an order the property will be sold to another party against wishes.
(I read that to mean Mrs Farrell's wishes.)
The application is supported by the affidavit of Mrs Farrell. It refers to an application of 8 April 2009, made to the Registrar of Titles (Landgate), to remove caveat K502779 over Mrs Farrell's property at 6 Muston Grove, Churchlands.
Significantly, Mrs Farrell advises that she is a person subject to a limited State Administrative Tribunal guardianship order of 3 October 2007.
She continues at paragraphs 9 and 10 as follows:
9. Despite Mr Waugh's SAT appointment, it is limited and does not include matters of my estate. Therefore, I do not have a guardian or a solicitor in this matter.
10. Further, when taking actions against persons under disability such as this, Order 70 Rule 5 sub‑rule (1) of the Rules of the Supreme Court requires applicants to in turn make certain applications to the Court for orders appointing guardians. These additional requirements do not appear to have been considered by the Registrar of Titles.
In view of the urgency of the matter - and a related matter which I have dealt with, namely, CIV 1686 of 2009 - the matters were listed returnable before me in Chambers at 9.15 am on Friday, 24 April 2009.
A further issue I observe at the outset is the fact that Mrs Farrell's affidavit of 21 April 2009 mentions at paragraph 1, 'I am the registered proprietor of the property located at 6 Muston Grove, Churchlands'. Thus Mrs Farrell is both registered proprietor, as well as caveator. Her caveat K502779, which is an absolute caveat, prevents all dealings against the property.
When the matter first came before me on Friday morning, Mrs Farrell appeared in person. She was not otherwise assisted. However, Mr Christopher Williams, instructed by Solomon Brothers, attended and sought leave to appear on behalf of Carpaolo Nominees Pty Ltd, as the second mortgagee, registered in respect of the title to the property. Mr Williams sought leave to be heard and for Carpaolo Nominees Pty Ltd to be added as a further defendant to the action. I made an order in those terms on Friday, 24 April 2009.
Mr Williams also handed up a lengthy affidavit sworn on 23 April 2009, which provided a lot of necessary background in respect of the state of this particular title and which was not provided in Mrs Farrell's own initiating materials. It also explained the second mortgagee's interest in the land and provided a considerable history of many applications made by Mrs Farrell in various proceedings in this Court.
On Friday 24 April, Mr Ashdown of counsel also attended on behalf of the Public Trustee, and was also given leave to be heard. Mr Ashdown explained the position of the Public Trustee in other litigation relating to the Muston Grove property, being essentially that as set out in reasons for judgment Farrell v Allregal Enterprises Pty Ltd[No 2] [2009] WASC 65, delivered by his Honour Justice Pullin on 13 March 2009 and published on 23 March 2009. I had not had the opportunity of considering those materials before Friday 24 April, but did so in the interim.
It is convenient for me to refer to those observations of Justice Pullin. At [4] thereof, he refers to the State Administrative Tribunal's limited guardianship order made concerning Mrs Farrell in 2007, which appoints Ronald Charles Waugh as her limited guardian, with one of Mr Waugh's powers being to act as guardian ad item for Mrs Farrell to defend or settle any legal proceedings taken against Mrs Farrell except in proceedings relating to the 'estate' of the represented person, ie, the estate of Mrs Farrell. His Honour then (materially) observed:
Mrs Farrell was therefore a 'represented person' as defined in s 3 of the Guardianship and Administration Act 1990 (WA) and is therefore by reason of that fact, a 'person under disability' within the meaning of O 70 of the Rules of the Supreme Court 1971 (WA) [4].
His Honour referred to O 70 r 2(1) which provides:
[A] person under disability may not bring, or make a claim in, any proceedings except by his next friend and may not defend, make a counterclaim or intervene in any proceedings … except by his guardian ad litem.
It is apparent then that the proceedings commenced by this action, CIV 1726 of 2009, are commenced by Mrs Farrell in person, without a next friend. Since Mrs Farrell is a person under a disability, for reasons explained by Justice Pullin, there is a threshold jurisdictional question arising which goes to the potential validity of the proceedings. Hence, there is an ambit question as to whether or not I can validly make any order under s 138C of the Transfer of Land Act 1893 (WA) in proceedings irregularly commenced, even were I minded to do so.
I should say that the proceedings raise a very narrow point - once one gets to the merits - after surmounting the jurisdictional issue of Mrs Farrell's disability. That question is whether or not Mrs Farrell, as a caveator served with a notice under s 138B(1), can satisfy the Supreme Court pursuant to s 138C(2), that her caveator's claim 'has or may have substance'.
By s 138C(2) of the Transfer of Land Act, inter alia, the Court, if not satisfied that the caveator's claim has or may have substance shall dismiss the application, and also may make such ancillary orders in relation to the application as it thinks fit.
On Friday 24 April 2009, Mr Ashdown of counsel, who as I have mentioned appeared on behalf of the Public Trustee, told me that the Public Trustee would be prepared to be appointed as Mrs Farrell's next friend in this action, were that to be the court's wish. His client's preference, however, was that that event not occur.
The position of the Public Trustee as explained to me by Mr Ashdown was that it did not wish to be potentially exposed to an adverse costs order, by reason of taking up the position of Mrs Farrell's next friend in this proceeding. At that time I had not read or appreciated Justice Pullin's reasons in terms of his earlier need to appoint the Public Trustee to address a number of issues arising in and out of earlier litigation that was confronting his Honour in the appellate context.
I now have a better appreciation of the need that the Court has experienced in the past, in dealing with Mrs Farrell's matters, to make use of the Public Trustee, in terms of involving it to redress the core issue of her disability, which seems to be an ongoing obstacle to reaching the merits of litigation relating to Mrs Farrell.
In my view, any concerns as regards the Public Trustee's position here, as regards a potential adverse costs order, can be accommodated in my overall end resolution of the matter.
It now seems to me, having had the benefit of being provided with and of considering the extensive background, as a result of considering the content of Mr Williams' affidavit of 23 April 2009, and further materials from Mrs Farrell by way of her further statutory declaration (which contained considerable background materials), that the issue of potential invalidity - arising out of the absence of there being a next friend as regards Mrs Farrell, insofar as commencement of this action, CIV 1726 of 2009, is concerned - must be squarely addressed at the outset.
It seems to me that the only way that I can safely take any sort of step towards evaluating the merits of Mrs Farrell's application by this action to extend her caveat (that will otherwise lapse) is by first addressing the issue of the potential invalidity of the proceedings and as a consequence, protecting against a contingency of the ensuing invalidity of any orders I might otherwise make.
That being the case, it does seem to me now that it is most appropriate that I, like Justice Pullin in other matters, follow his approach of appointing the Public Trustee to be Mrs Farrell's next friend in these proceedings, CIV 1726 of 2009. I do that, recognising that some considerable correspondence has been sent (by email) to my associate over the course of an ensuing long weekend, both from Mrs Farrell and from her limited guardian Mr Waugh, which is expressed as very much opposed to the appointment of the Public Trustee as Mrs Farrell's next friend in this proceeding.
Nevertheless, it seems to me that if I am ever to deal with the merits, I have no other real or practical alternative, and accordingly it is, I think, in the interests of justice and appropriate here to appoint the Public Trustee to be Mrs Farrell's next friend in this action.
Having addressed the issue of disability by the appointment of the Public Trustee, I can now turn to the question of whether there is or is not some arguable merit in the asserted basis to maintain Mrs Farrell's caveat, ie, some degree of merit which warrants that it be extended beyond midnight 30 April 2009.
Helpfully, Mr Williams' affidavit contained for me a copy of Mrs Farrell's caveat K502779, as annexure CSW6 to his affidavit.
I also need to refer to Mrs Farrell's statutory declaration of 11 February 2008, sworn in support of that caveat. Somewhat curiously, as I have observed, Mrs Farrell is both registered proprietor of 6 Muston Grove, Churchlands, as well as a caveator. Her caveat expresses itself in terms of the interest claimed for an absolute caveat, and 'as registered proprietor to prevent improper dealings'.
However, the nature of that interest claimed by her in her own land, and expressed by reference to her being 'registered proprietor', seems to me to be misconceived. Recourse to Mrs Farrell's statutory declaration supporting the caveat of 11 February 2008, in my assessment, does not advance matters. The statutory declaration refers at paragraph 9 to 'Estate or interest being claimed' as follows: 'as registered proprietor to prevent improper dealings'. But that is merely to repeat the 'mantra' which, as I have already referred, is seen on the face of her absolute caveat.
In the present case, unlike some earlier dealings with another property in Wembley Downs that was owned by Allregal Enterprises Pty Ltd (not by Mrs Farrell), Mrs Farrell is here the registered proprietor of the land under caveat, as well as a caveator. The assertion of a caveatable interest by her as a registered proprietor 'to prevent improper dealings', seems to me to be without a conceptual basis in law because of her higher rights as registered proprietor. It is also lacking, I think, in any underlying factual foundation, or at least so that seems to be, in the absence of some factual matter being provided going to what alleged improper dealings there might be.
What would appear to be occurring here in the context of the registrar's notice that has been received by Mrs Farrell is that the second mortgagee, Carpaolo Nominees Pty Ltd (now the second defendant to this action, as a result of my orders of last Friday), is seeking to exercise its powers of sale as registered second mortgagee, by way of effecting a private mortgagee sale of the property to a Ms Melanie Brearley, under a contract of sale accepted by Carpaolo Nominees on 27 February 2009, as a mortgagee exercising the power of sale.
Carpaolo Nominees, arising out of another action in this Court, CIV 2250 of 2007, is the beneficiary of a summary judgment granted in its favour by the master against Mrs Farrell for an amount of $1,027,967.72 inclusive of interest as well as an order entitling it to vacant possession of the property at 6 Muston Grove, Churchlands: see order 4 of orders granting summary judgment made by the master on 24 September 2008.
A prior bankruptcy of Mrs Farrell also renders her asserted beneficial interest in the land problematic, given that she acquired her 6 Muston Grove, Churchlands property - before a debtors' petition which made her bankrupt. As to that, I also refer to the observations of Justice Pullin in Farrell v Allregal Enterprises [36].
Although the materials before me make it plain that an appeal has been filed in respect of the master's summary judgment orders and that there have been various applications foreshadowing a stay of those orders, there is, as I evaluate things, now no stay of what is otherwise a regular judgment of the court by the master for summary judgment. Nor, as I see it, would a stay of orders for the payment of money or vacant possession, necessarily go to interrupt an exercise of a registered mortgagee's power of sale.
Accordingly, I see no basis on the materials before me to date for me to ascertain an existence of an interest arguably supporting Mrs Farrell's caveat, which is lodged on the basis of her being a registered proprietor to 'prevent improper dealings'. I say this after having heard oral submissions of Mrs Farrell on Friday, 24 April 2009, as well as reading over the long weekend a copy of her statutory declaration handed up after the hearing (dated 23 April 2009) and its extensive attachments.
I have received Mrs Farrell's email sent to my associate at 2.21 pm on 24 April 2009, in which she says:
In case I was not explicit enough in court, I wish to state categorically that I do not accept the appointment of the Public Trustee (or its counsel, Mr Brendan Ashdown) as my legal guardian in this matter.
Given, however, Mrs Farrell's threshold disability and its potential jurisdictional ramifications, as explained by Justice Pullin in the reasons to which I have referred, my decision, as I have said, is to the contrary - as regards the Public Trustee - and I do appoint, as I have said, the Public Trustee to be Mrs Farrell's next friend in this matter.
My appointment of the Public Trustee as next friend will be effective retrospectively, to the commencement of this action; in other words, nunc pro tunc.
I should also record the position of the Registrar of Titles as the first defendant, under its letter sent by facsimile at 2.51 pm on Thursday, 23 April 2004 to the Principal Registrar of the Supreme Court, and by which the first defendant says it will abide by any order of the court, and also points to the appointment of the Public Trustee to act as next friend of the plaintiff in relation to three appeals, including CACV 101 of 2008.
I note a copy of an email handed to me last Friday, 24 April, dated 26 March 2009, at 9.38 pm from Mr Ron Waugh, as the limited guardian of Mrs Farrell, to somebody addressed in the email as 'Gavin'. This email was then on-forwarded from Mr Ron Waugh to another person, referred to in that email as '[email protected]'. That email mentions Mrs Farrell as suffering from a stroke on a Wednesday afternoon some time in late March 2009, after attending a meeting at the Public Trustee's office. The information in that email was not current beyond the end of March 2009.
This morning I learned of some further materials received which I refer to, simply by way of notation as to their receipt.
The first is an email, sent at 5.43 am on Saturday - that is, Anzac Day, 25 April 2009 - by Mrs Farrell to my associate, which referred me to some of the reasons for judgment of Justice Pullin in other matters. (Most of those reasons had, however, already been provided to me in Mr William's materials.) Those materials do not alter the views I have articulated already.
In a further email to my associate of yesterday, Mrs Farrell says:
The urgent attention of the honourable Justice Kenneth Martin to assist him with my guardianship matter before his decision on Tuesday. In saying that I have suffered badly, having to stand up yesterday, and Royal Perth Hospital has ordered me a 24‑hour halter monitor commencing at 10.30 am on Tuesday the 28th in the cardiology section. I will be an outpatient so I do not know whether I am allowed to leave during the 24‑hour period. Please be assured I would like to attend to hear what his Honour decides but either can the time of his judgment be changed until my RPH visit or please advise the Judge of the reason for my absence if he is unable to deliver his finding the following day after 10.30, being 29 April. Thank you. Mrs Farrell.
However, for reasons including the great urgency of the matter, my need to work around a looming 30 April midnight deadline and indeed the issue of Mrs Farrell's obvious disability, both physical and otherwise, as addressed by the guardianship order, it seemed to me that I simply could not delay further to deal with the matter. I do observe that Mrs Farrell is here again this afternoon, in person, to hear these reasons.
There was also an email from Mrs Farrell on what would have been Sunday, 26 April 2009 at 3.19 pm, again to my associate, in which Mrs Farrell forwarded some further materials concerning Justice Pullin's appointment of the Public trustee in respect of three specific matters. She then says:
As such, the Public Trustee's guardianship should not been assumed universal across all matters, especially CIV 1726 of 2009.
She says:
Mr Ashdown was not asked by me to attend Friday's hearing and he had no place appearing for me without my permission, let alone seeking the Public Trustee's appointment as my guardian in that new matter.
I pause to observe that that statement is, in fact, incorrect. Mr Ashdown attended before me on Friday as a courtesy. He made the position of the Public Trustee apparent and, in fact, the position stated was that the Public Trustee did not wish to be appointed, although it was prepared to be appointed, should that be my wish. That should be made clear.

Mrs Farrell continues:
I therefore object to all events that transpired at the hearing on Friday involving Mr Ashdown and the Public Trustee and I hereby object in writing to the Public Trustee acting as my guardian in this new matter; namely, CIV 1726 of 2009.
She then directs my attention to s 51(2)(e) of the Guardianship and Administration Act 1990 (WA) and to Pt 2, s 4(2)(f) of the same Act, and makes some further observations about the appropriateness of the Public Trustee being appointed.
I have taken all that into consideration. But I do so on the basis that self-evidently, and as is apparent, Mrs Farrell is a person under a disability and that until that threshold issue is addressed, the matter simply cannot progress to any proper consideration of its merits.
I also mention for the record, that on 27 April 2009 - that is, yesterday - I also received through my associate, a direct communication from the limited guardian of Mrs Farrell, Mr Ron Waugh, by email at 9.04 am. In the body of that email Mr Waugh says:
As such, the purpose of this email is to voice my strongest objection to the Public Trustee's further appointment as Ms Farrell's guardian. To date the Public Trustee has shown a complete disinterest in pursuing applications to overcome past irregularities involving Ms Farrell under order 70 of the Rules. Justice Pullin exhaustively examined those irregularities prior to his previous appointment of the Public Trustee.
He continues:
Mrs Farrell's guardian carried some expectation that certain irregularities under Order 70 might be addressed by the Public Trustee and even dispatched …
and:
Following her only meeting with the Public Trustee on 25 March 2009, Ms Farrell is now fearful of the stress that further contact with its officers might bring. She also believes (with good grounds I believe) that the Public Trustee has consistently ignored her views and wishes since its first appointment.
Mr Waugh concludes:
I have attached three documents that highlight problems to date between Ms Farrell and the Public Trustee.
These were attachments to that email.
Again, I have considered that material but, after taking it into account, it does not influence or deflect me, in terms of my ultimate view that it is most appropriate in this matter, in order for its merits to be ultimately addressed, that the Public Trustee be appointed as Mrs Farrell's next friend. I make that order.
A second order I make is that this matter be admitted into the CMC list to be case managed by myself.
Although from the preliminary observations I have made to date, it looks to me now that I cannot, at this point, discern any arguable merit in an argument to extend Mrs Farrell's caveat that is predicated on her asserted interest as a caveator to restrain 'improper dealings' against a property of which she is registered proprietor, nevertheless at this point - namely, at the close of business on 28 April 2009 - I do not propose yet to make any greater or concluding order in regard to the matter.
Rather, having now appointed the Public Trustee as Mrs Farrell's next friend, it seems to me that it is more appropriate to allow the Public Trustee to have the opportunity of considering the observations I have just articulated.
The Public Trustee may, of course, choose to do nothing at all, in which case there will then be no order made extending Mrs Farrell's caveat and so it will lapse at midnight on 30 April 2009.
On the other hand, should it be the case that the Public Trustee, with the opportunity of considering these observations, decides that an application to extend the caveat is justified and proper and should be made prior to 30 April, then I am giving the Public Trustee as Mrs Farrell's next friend a further, albeit brief, opportunity to make that further application to me, as a matter of urgency.