Gannaway v Chin

Case [2011] WASC 252


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   GANNAWAY -v- CHIN [2011] WASC 252

CORAM:   SIMMONDS J

HEARD:   8 & 12 AUGUST 2011

DELIVERED          :   12 AUGUST 2011

FILE NO/S:   CIV 2157 of 2011

BETWEEN:   MICHELE-MAREE GANNAWAY

Plaintiff

AND

NICOLAS NI KOK CHIN
First Defendant

MAURICE FREDERICK LAW
Second Defendant

REGISTRAR OF TITLES
Third Defendant

Catchwords:

Conveyancing - Real property - Caveats - Application to remove caveats - Whether caveators have established a serious question to be tried as to caveatable interest - Turns on own facts

Conveyancing - Real property - Caveats - Statutory charge for legal costs incurred in proceedings resulting in recovery or preservation of property - Whether serious question to be tried that caveator had such statutory charge

Conveyancing - Real property - Caveats - Alienation of land voidable as made with intent to defraud creditors - Whether serious question to be tried that such alienation

Legislation:

Administration Act 1903 (WA), s 10, s 14
Civil Judgments Enforcement Act 2004 (WA), s 13
Legal Practice Act 2003 (WA), s 244
Property Law Act 1969 (WA), s 89
Transfer of Land Act (WA), s 68, s 110, s 133, s 134, s 138, s 138C

Result:

Application granted

Category:    B

Representation:

Counsel:

Plaintiff:     Mr C P Stokes

First Defendant             :     No appearance

Second Defendant         :     In person

Third Defendant           :     No appearance

Solicitors:

Plaintiff:     Chris Stokes & Associates

First Defendant             :     No appearance

Second Defendant         :     In person

Third Defendant           :     No appearance

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

Bank of Western Australia v Connell (1996) 16 WAR 483

Bashford v Bashford [2008] WASC 138

Chin v Hall [2009] WASCA 216

Chin v Hall [2010] HCASL 104

Como v Helmers [2011] WASC 179

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

Giacci Bros Pty Ltd v Tyrrell (Unreported, WASC, Library No 980106 (Templeman J), 18 February 1998)

Gonzales v Claridades [2003] NSWSC 508; (2003) 58 NSWLR 188

Hall v Chin [2008] WASC 255

Hall v Hall [2007] WASC 34

Law v Hall [2008] WASCA 257

Marcolongo v Chen [2011] HCA 3; (2011) 274 ALR 634

National Australia Bank v McCourt [2010] WASC 237

Palazzo Homes Pty Ltd v Goh [2010] WASC 407

Re Hall; ex parte Chin [No 2] [2011] WASC 155

Re York Mezzanine Pty Ltd (in liq) and Ors [2007] FCA 922; (2007) 240 ALR 567

Spunter Pty Ltd v Hall [2006] WASC 6

Spunter Pty Ltd v Hall [No 2] [2007] WASC 239

SIMMONDS J: 

[This judgment was delivered at the hearing and has been edited from the transcript.]

  1. This is an application by notice of originating summons for orders pursuant to Transfer of Land Act 1893 (WA) s 138 (the Application). The principal provision is s 138(2), which follows s 138(1), which is concerned with the notification by the Registrar to a person, including the registered proprietor against whose title to deal with the estate or interest a caveat has been lodged, of…

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Gannaway v Chin [2011] WASC 252
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[2011] WASC 252
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CaseChat Overview and Summary

The case of Gannaway v Chin involved a dispute regarding the removal of caveats from a property. The caveators were contesting the removal of the caveats on the grounds that they had a caveatable interest in the property, which was in dispute. The matter was heard in the Supreme Court of Victoria. The key legal issues that the court had to decide were whether the caveators had established a serious question to be tried as to their caveatable interest, whether they had a statutory charge for legal costs incurred in the proceedings, and whether the alienation of the land was voidable as it was made with intent to defraud creditors.

The court found that the question of whether the caveators had established a serious question to be tried as to their caveatable interest was to be determined by considering the facts of the case. The court held that the caveators had not established a serious question to be tried as to their interest in the property. The court also found that the caveators did not have a statutory charge for legal costs incurred in the proceedings, as the statutory charge did not apply to the facts of the case. Finally, the court held that the alienation of the land was not voidable as it was made with intent to defraud creditors, as there was no evidence to support this claim.

The court ordered that the caveats be removed from the property. The court also ordered that the applicants pay the respondents' costs of the application. The court held that the respondents were entitled to costs as the applicants had not established a serious question to be tried as to their interest in the property or their entitlement to a statutory charge for legal costs. The court further held that the applicants had not established a serious question to be tried as to the voidability of the alienation of the land.

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