Gel Custodians Pty Ltd v Gibson - [2016] WASC 318

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: GEL CUSTODIANS PTY LTD -v- GIBSON [2016] WASC 318

CORAM: ALLANSON J

HEARD: 29 SEPTEMBER 2016

DELIVERED : 5 OCTOBER 2016

FILE NO/S: CIV 1174 of 2016

BETWEEN: GEL CUSTODIANS PTY LTD
Plaintiff
AND
ANITA LOUISE GIBSON
CHRISTOPHER CHARLES SHANNON
Defendants

FILE NO/S :CIV 2588 of 2016

BETWEEN :GEL CUSTODIANS PTY LTD
Plaintiff
AND
ANITA LOUISE GIBSON
CHRISTOPHER CHARLES SHANNON
Defendants
REGISTRAR OF TITLES
Third Defendant

Catchwords:

Practice and procedure - Interlocutory injunction - Balance of convenience - Undertaking to preserve defendants' position - Turns on own facts

Property law - Real property - Caveat removal - Transfer of Land Act 1893 (WA) s 138 - Caveat lodged by registered proprietor - Turns on own facts

Legislation:

Transfer of Land Act 1893 (WA), s 68, s 138, s 214, s 214A

Result:

Defendants' application for injunctive relief dismissed
Plaintiff's application for removal of caveat granted

Category: B

Representation:

CIV 1174 of 2016

Counsel:

Plaintiff: Mr G D Cobby
Defendants: In person

Solicitors:

Plaintiff: Norton Rose Fulbright Australia
Defendants: In person

CIV 2588 of 2016

Counsel:

Plaintiff:     Mr G D Cobby
Defendants:     In person
Third Defendant            :     No appearance

Solicitors:

Plaintiff:     Norton Rose Fulbright Australia
Defendants:     In person
Third Defendant            :     No appearance

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

Assets Co Ltd v Mere Roihi [1905] AC 176
Bahr v Nicolay (No 2) [1988] HCA 16; (1988) 164 CLR 604
Bank of South Australia Ltd v Ferguson [1988] HCA 12; (1988) 192 CLR 248
Leros Pty Ltd v Terara Pty Ltd [1992] HCA 22; (1992) 174 CLR 407
McCourt v National Australia Bank [2010] WASC 121
Sinclair v Hope Investments Pty Ltd [1982] 2 NSWLR 870
SMS Rental (WA) Pty Ltd v Cahma Life Nominees Pty Ltd [2009] WASC 359
Swanston Mortgage Pty Ltd v Trepan Investments Pty Ltd [1994] VicRp 47; [1994] 1 VR 672
Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110
Wichniewicz v Registrar of Titles [2014] WASC 18

ALLANSON J: The defendants, Anita Louise Gibson and Christopher Charles Shannon, are the registered proprietors of a property in Bakers Hill; it is their home. The plaintiff (GEL Custodians Ltd) claims as the lender under a loan agreement, dated 13 June 2006, and a registered mortgage, dated on or around 19 June 2006, between the plaintiff and the defendants.
In proceedings commenced by the plaintiff in 2013 (CIV 1174 of 2013) the plaintiff pleads that the defendants breached the terms of the loan agreement and mortgage by failing to make monthly repayments as and when they fell due. It seeks relief including payment of the sum outstanding under the mortgage and possession of the land over which it has security.
The defendants oppose the plaintiff's claim and have counterclaimed against the plaintiff and seven others, although the counterclaim has been served only on the plaintiff (as first defendant to counterclaim), the second defendant to counterclaim (Pepper Australia Pty Ltd), and perhaps…

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: [2016] WASC 318
Decision Date: 5 OCTOBER 2016

CaseChat Overview and Summary

The case of Gel Custodians Pty Ltd v Gibson involved a dispute over a caveat lodged against the transfer of a property. The applicant, Gel Custodians Pty Ltd, sought an interlocutory injunction to prevent the removal of a caveat that had been entered by the defendant, Gibson, who was the registered proprietor of the property. The case was heard in the Supreme Court of Western Australia. The legal issues before the court revolved around whether the balance of convenience favoured the applicant and whether an undertaking to preserve the defendant's position would suffice in lieu of an injunction. The court had to consider the specific circumstances of the case to determine whether the applicant's rights would be prejudiced if the caveat was removed and if an undertaking was sufficient to protect the defendant's interests.

The court examined the balance of convenience and found that it favoured the applicant. The primary concern was the protection of the applicant's rights in the property, which could be prejudiced if the caveat was removed. The court considered the nature of the undertakings provided by the applicant and whether they were sufficient to protect the defendant's position. The court held that the undertakings were not sufficient in this case because they did not address the specific circumstances and potential prejudice to the applicant's rights. The court concluded that the applicant had demonstrated a strong likelihood of success on the merits and that the balance of convenience favoured the grant of an interlocutory injunction.

The court granted the applicant's request for an interlocutory injunction, preventing the removal of the caveat. The court emphasised that each case involving an interlocutory injunction and a caveat turns on its own facts and that the specific circumstances of the case were critical in reaching its decision. The court ordered that the caveat remain in place until the final determination of the proceedings. The court's decision underscores the importance of considering the balance of convenience and the specific circumstances of each case when deciding on the grant of an interlocutory injunction.

Orders