Frigger v Reid

Case [2017] WASC 138

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   FRIGGER -v- REID [2017] WASC 138

CORAM:   MARTINO J

HEARD:   23 MAY 2017

DELIVERED          :   23 MAY 2017

FILE NO/S:   CIV 1760 of 2017

BETWEEN:   ANGELA CECILIA THERESA FRIGGER

Plaintiff

AND

EVELYN CHARLOTTE REID
First Defendant

REGISTRAR OF TITLES
Second Defendant

Catchwords:

Caveat - Application for extension - Application for injunction

Legislation:

Transfer of Land Act 1893 (WA)

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Plaintiff:     In person

First Defendant              :     Mr H Bendtsen

Second Defendant         :     No appearance

Solicitors:

Plaintiff:     In person

First Defendant              :     H L B Lawyers

Second Defendant         :     No appearance

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

Bashford v Bashford [2008] WASC 138

Baumgartner v Baumgartner (1987) 164 CLR 137

Brogue Tableau Pty Ltd v Binningup Nominees Pty Ltd [2007] WASCA 179; (2007) 35 WAR 27

Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42

George v Fletcher (Trustee) [2010] FCAFC 53

J & H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546

Jandric v Jandric [1999] WASC 22

Klewer v The Official Trustee in Bankruptcy [No 2] [2008] FCA 1788

Lydon v Ryding [2002] WASC 308

Muschinski v Dodds (1985) 160 CLR 583

Okewood Pty Ltd T/As Perth Glory v Football Federation Australia Ltd [2015] WASC 127

Porter v McDonald [1984] WAR 271

Professional Services of Australia Pty Ltd v Mila Properties Pty Ltd [2004] WASC 30

Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110

  1. MARTINO J:  Evelyn Charlotte Reid is the registered proprietor of land in Hamersley.  Angela Cecilia Theresa Frigger is one of her children.  On 18 September 2016 Mrs Frigger lodged a caveat over the Hamersley land.  A copy of that caveat is annexed to an affidavit of Mrs Frigger made on 15 May 2017.  The interest she claimed in that caveat was a right to the proceeds of the sale of land or a share thereof by virtue of a beneficial interest named in the registered proprietor's last will and testament.

  2. On 21 December 2016 the State Administrative Tribunal made an administration and guardianship order under the Guardianship and Administration Act 1990 (WA) in respect of Mrs Reid and appointed Keith Ashely Reid and Patricia Helen Forsyth‑Reid as Mrs Reid's administrators and guardians. Mr Reid and Ms Forsyth‑Reid are children of Mrs Reid.

  3. On 5 May 2017 the Registrar of Titles sent to Mrs Frigger a notice under s 138B of the Transfer of Land Act 1893 (WA) informing her that her caveat would lapse on 29 May 2017 unless a Supreme Court order was obtained under s 138B of the Transfer of Land Act by that date.

  4. Mrs Frigger applies for the an order amending the caveat by amending the estate or interest being claimed in the land by adding the words 'after the death of Evelyn Charlotte Reid', an extension of the caveat, alternatively orders restraining the first defendant from creating, disposing or dealing…

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Frigger v Reid [2017] WASC 138
Case
[2017] WASC 138
Decision Date

CaseChat Overview and Summary

In the case of Frigger v Reid, the applicant, Mrs Frigger, sought an extension of her caveat over certain land and an injunction preventing the respondent, Mrs Reid, from dealing with the land. Mrs Reid applied for the removal of the caveat and the injunction. The application arose from a dispute over the validity of a will, which Mrs Frigger claimed left her one quarter of her mother's estate. The primary legal issues were whether Mrs Frigger had a caveatable interest in the land and if the court should grant the injunction to prevent Mrs Reid from dealing with the land.

The court considered whether Mrs Frigger had a caveatable interest in the land, which would need to be a proprietary interest. The court held that a beneficiary under a will does not have a proprietary interest while the testator is alive, only the prospect of acquiring a right or title upon the testator's death. Since Mrs Reid was still alive, Mrs Frigger's interest under the will was not proprietary. The court also considered the appropriate test for granting an extension of a caveat, which required the caveator to demonstrate that there is a serious question to be tried as to whether a caveatable interest exists. The court found that Mrs Frigger had not met this burden.

The court dismissed Mrs Frigger's application for an extension of the caveat and the injunction, finding that her claim did not have substance. The court ordered that the caveat be removed and that Mrs Reid be released from the injunction.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Section 137 of the Transfer of Land Act enables a person who claims 'any estate or interest' in land to lodge a caveat. A caveatable interest must be a proprietary interest in land: Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42, 50. A caveat is a form of statutory injunction preventing registration of a dealing against land until the caveator has been given a reasonable opportunity to justify the caveat by pursuing such remedies as the caveator may have: J & H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546, 552, 558; Custom Credit (44 ‑ 45); Brogue Tableau Pty Ltd v Binningup Nominees Pty Ltd [2007] WASCA 179; (2007) 35 WAR 27 [68]. The power of the court to make orders in favour of a caveator under s 137C of the Transfer of Land Act arises only if the court is satisfied that the caveator's claim 'has or may have substance'. The 'caveator's claim' refers to the claim by the caveator of the estate or interest that is claimed in the caveat: Professional Services of Australia Pty Ltd v Mila Properties Pty Ltd [2004] WASC 30 [17]. On an application for an extension, the onus is on the caveator to demonstrate that there is a serious question to be tried as to whether a caveatable interest exists: Custom Credit (48); Jandric v Jandric [1999] WASC 22 [5]. In an application for an extension of caveat it is not appropriate to attempt to resolve conflicts of evidence on affidavit: Porter v McDonald [1984] WAR 271, 276. The caveat will not be removed unless the claim to an estate or interest in the land appears to be without foundation: Porter v McDonald (276); Custom Credit (48). I will assume for the purposes of today that there is an arguable case that under her most recent will Mrs Reid has left one quarter of her estate to Mrs Frigger. As Mrs Reid is still alive such a provision would give Mrs Frigger no interest in her mother's estate. In Klewer v The Official Trustee in Bankruptcy [No 2] [2008] FCA 1788 Bennett J said at [50]:A 'beneficiary under [a] will derives, while the testator remains alive, no legal or equitable right or title from the will: all the beneficiary has is the prospect of acquiring a right or title if the testator dies in the lifetime of the prospective beneficiary without revoking or altering the will' (Meagher, Heydon and Leeming, Meagher, Gummow and Lehane's Equity: Doctrines & Remedies (4th ed, LexisNexis Butterworths, 2002) at [6‑190]). As was stated In Re Parsons; Stockley v Parsons (1890) 45 Ch D 51, at 55, per Kay J (approved in Ogden Industries Pty Limited v Lucas (1968) 118 CLR 32, at 37):It is indisputable law that no one can have any estate or interest, at law or in equity, contingent or other, in the property of a living person to which he hopes to succeed as heir at law or next of kin of such living person. During the life of such person no one can have more than a spes successionis, an expectation or hope of succeeding to his property. The statement by Bennett J in Klewer v The Official Trustee in Bankruptcy [No 2] was approved of by the Full Court of the Federal Court in George v Fletcher (Trustee) [2010] FCAFC 53 [106].