Genovesi v Clairs
[2000] WASC 246
•29 NOVEMBER 2000
GENOVESI -v- CLAIRS & ANOR [2000] WASC 246
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASC 246 | |
| Case No: | CIV:2579/2000 | 28 NOVEMBER 2000 | |
| Coram: | ROBERTS-SMITH J | 29/11/00 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application to extend caveat refused | ||
| PDF Version |
| Parties: | ERCOLI PIETRO GENOVESI COLIN JAMES CLAIRS JEAN MABEL CLAIRS |
Catchwords: | Transfer of Land Act 1893 Extension of caveat Defendants' sewer pipes on plaintiff's property Obligation to bear costs of removal on defendants or their successor in title Whether plaintiff has caveatable interest Whether serious question to be tried |
Legislation: | Transfer of Land Act 1893, s 137, 138B |
Case References: | Butler v Fairclough (1917) 23 CLR 78 Custom Credit Corp Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42 Eng Mee Yong v Letchumanan (1980) App Cas 331 Goldfields Homes Pty Ltd v Jones & Anor (2000) WASC 139 J and H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546 Jandric v Jandric & Anor (1999) WASC 22 Lewenberg v Direct Acceptance Corporation Ltd (1981) VR 344 Municipal District of Concord v Coles (1905) 3 CLR 96 Porter v McDonald (1984) WAR 271 Shepherd v Houston (1927) SASR 144 Woodberry v Gilbert (1907) 3 Tas 7 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
COLIN JAMES CLAIRS
JEAN MABEL CLAIRS
Defendants
Catchwords:
Transfer of Land Act 1893 - Extension of caveat - Defendants' sewer pipes on plaintiff's property - Obligation to bear costs of removal on defendants or their successor in title - Whether plaintiff has caveatable interest - Whether serious question to be tried
Legislation:
Transfer of Land Act 1893, s 137, 138B
Result:
Application to extend caveat refused
(Page 2)
Representation:
Counsel:
Plaintiff : Ms M C Sandford
Defendants : Mr S J H Gethin
Solicitors:
Plaintiff : Margaret C Sandford
Defendants : P J Gethin & Co
Case(s) referred to in judgment(s):
Butler v Fairclough (1917) 23 CLR 78
Custom Credit Corp Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42
Eng Mee Yong v Letchumanan (1980) App Cas 331
Goldfields Homes Pty Ltd v Jones & Anor (2000) WASC 139
J and H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546
Jandric v Jandric & Anor (1999) WASC 22
Lewenberg v Direct Acceptance Corporation Ltd (1981) VR 344
Municipal District of Concord v Coles (1905) 3 CLR 96
Porter v McDonald (1984) WAR 271
Shepherd v Houston (1927) SASR 144
Woodberry v Gilbert (1907) 3 Tas 7
Case(s) also cited:
Nil
(Page 3)
1 ROBERTS-SMITH J: This is an application by chamber summons dated 20 November 2000 for orders that the operation of caveat H221762 registered on 13 September 1999 by the plaintiff on the land owned jointly by the defendants, known as 30 Salisbury Street, Bayswater, being lot 113 on plan 1267, being the whole of the land comprised in certificate of title volume 1011 folio 245, be extended until further order of the Court and for consequential orders.
2 The only evidentiary material before me is an affidavit of Ercoli Pietro Genovesi sworn on 18 November 2000 and to which there are annexed a number of documents. It is convenient to briefly set out the history of the matter as it appears from that affidavit, those documents and the submissions put to me.
3 The plaintiff is the sole registered proprietor of and resident at land known as 32 Salisbury Street, Bayswater, which is lot 114 and adjacent to lot 113, which is the subject land. The problem arose when in or about October 1998 the plaintiff discovered, as a result of certain fencing work that was being undertaken between his property and lot 113, that the Water Corporation inspection shaft and sewerage pipes pertaining to the adjacent property had been erroneously placed on his land in or about 1938 by the Metropolitan Water Supply which is of course now known as the Water Corporation. There seems to be no dispute between the parties as to the factual aspect that the sewerage pipe and access shaft are indeed on the plaintiff's land.
4 On 3 November 1998 the plaintiff arranged for a Mr Dennis Potter of the Water Corporation to inspect the sewer pipes running the major length of his property boundary adjacent to the defendants' property. According to the plaintiff's affidavit he was informed by the Water Corporation representative that it was illegal for the pipes to remain on his land and that they would have to be relocated onto the defendants' property and that the Water Corporation would not assume liability for the cost of carrying out that work.
5 Mr Potter said he was not authorised by the Water Authority to confirm that advice in writing and advised the plaintiff that he should seek to have the adjacent owners of the property pay for the relocation. Various efforts were made by the plaintiff to that end and it is unnecessary for me to canvass them now. The upshot seems to have been, according to the plaintiff at least, that there was an oral agreement between himself and the male defendant made on 30 August 1999 that in view of the male defendant's contention that he and his wife could not afford to relocate the
(Page 4)
- sewer pipes, and given that they intended to sell the property in the year 2000, the defendants would instruct the selling agent to advise prospective purchasers - it would probably be developers because the house, as the plaintiff puts it, is a knock-down proposition and the property is subdivisible into two lots - that they would be required to carry out the relocation works as a condition of purchase.
6 It is clear, however, that the defendants failed to sign the letter which the plaintiff sought of them by way of confirmation of what he describes as that agreement and consequently, as he puts it, "In order to place prospective purchasers of the property on notice as to the problem I registered the caveat on 13 September 1999."
7 Further efforts by the plaintiff to have the defendants make arrangements for the relocation of the sewerage pipe proved unsuccessful. On or about 7 November 2000 the plaintiff was served with a notice that an application had been lodged under s 138B of the Transfer of Land Act 1893 and that accordingly at the expiration of 21 days from the date of service of that notice the caveat lodged by him against the land would lapse unless before that date an order was obtained from the Supreme Court to extend its operation.
8 Since that application was served on the plaintiff he has spoken with the defendants' nephew at the property and was apparently advised that the defendants now reside at a nursing home and do not intend to resolve the problem. The plaintiff's particular concern as advanced by him is that unless the caveat is extended by order of this Court he would suffer substantial prejudice, loss and damage in that potential purchasers of the defendants' property will not necessarily be warned of the problem.
9 The plaintiff's land comprises 956 square metres and has the potential to be subdivided into two lots. However, due to restrictions against building in close proximity to sewer installations he will be unable to maximise the subdivision potential of the land. In the event that he should sell the land he would be, he says, under a duty to disclose to prospective purchasers his current knowledge of the illegal sewer problem and this would adversely affect his ability to market the land and substantially reduce its value.
10 There are further complications as deposed to by the plaintiff. He says that from discussions with the Water Authority he has been led to believe that in order to rectify the problem the current boundary fence between lots 113 and 114, which is made of asbestos cement, would have
(Page 5)
- to be removed in order to replace the sewer inspection shaft and sewer line onto the defendants' land and a new fence would have to be erected as it would be illegal to reuse the old asbestos material.
11 He states that in addition he has been informed by the Water Corporation that the old encroaching pipes are made of asbestos and also need to be disposed of in accordance with hazardous waste legislation. A new junction inspection shaft and internal sewer reticulation need to be installed on the defendants' property within their boundary. The damage to his property caused would need to be made good. He anticipates that the cost of this work could amount to some $15,000 or more and he maintains that as a bona fide purchaser of his property without notice of the sewer problem until some five years after he purchased the land it would be most inequitable for him to have to bear all of the cost of effecting the works.
12 He concludes that the responsibility for carrying out the works rests with the defendants or with their successors in title and it is imperative, he says, that prospective purchasers are put on notice of the dispute so that they are also protected from unwittingly incurring loss and damage and so that any developers are fully apprised of the subdivision limitations of the defendants' property arising from there being no sewer installations on that property but rather on the plaintiff's land instead.
13 The caveat lodged by the plaintiff was as required supported by a statutory declaration in which he effectively said, albeit in somewhat briefer terms, that the estate or interest in the property which he was seeking to protect was an interest arising out of the potential cost of relocating the sewer line.
14 Having in the statutory declaration briefly described the circumstances generally as I have already indicated them as being, he continued in par 4 of his statutory declaration to assert:
"In the above circumstances I claim an interest in the land of the registered proprietors named in the caveat herewith by virtue of my right to have the Water Corporation inspection shaft and sewerage pipes erroneously placed on my land relocated to the registered proprietors or alternatively an interest in the proceeds of sale such as to cover the total costs of such relocation."
15 In the course of submissions before me yesterday Ms Sandford for the plaintiff presented a document entitled "Australia and New Zealand Standard National Plumbing and Drainage, Part 2.2, Sanitary Plumbing
(Page 6)
- and Drainage Acceptable Solutions" and drew attention specifically to par 4.4.2.2 which deals with mains sewer installations on properties. Under the heading "Location", that standard stipulates that the inspection shaft or boundary trap riser shall be located wholly within the property served.
16 As I say, there is no dispute on the facts that the sewerage line and inspection shaft is on the plaintiff's property and that it is, in fact, at law required to be on the defendants' property. Ms Sandford indicated to me that the Water Corporation could issue a work order requiring the sewer line to be relocated onto the defendants' property. That apparently has not been done to date because the Water Corporation was apparently hopeful that as a result of negotiations between the plaintiff and defendants some resolution satisfactory to them could be arrived at.
17 However, that has obviously not occurred and on the material before me it is unlikely that it will. The fact is, however, as Ms Sandford points out, that no work order has been issued and there has been no indication from the Water Corporation that it will or if it would be, then when that might be so. She does accept, however, that if the work order were issued it could only be issued to the defendants or their successors in title requiring them to bear the cost of relocating the sewer line and access shaft; that is to say, it would be issued on the basis that as a matter of law the defendants were responsible for the costs.
18 Ms Sandford also emphasised to me in submissions that it is very much in the public interest that potential purchasers, be they developers or otherwise, of the property lot 113 should be put on notice of the problem so that they are not confronted with the sort of situation in which the plaintiff now finds himself.
19 She submitted that what her client would prefer would be to see the requirement that any prospective purchaser of lot 113 be subject to a condition of sale that that purchaser bear the cost of relocating the sewer line. On the other side, no affidavits have been filed on behalf of the defendants. The submissions advanced on their behalf are, briefly, that even if the facts are as stated in the plaintiff's affidavit there is in short no right or interest in the land which would justify a caveat.
20 Mr Gethin for the defendants referred to the only possible action being perhaps one of trespass or even negligence but in neither case would the remedy be a remedy against the land itself. I think it is not necessary for me on this application to deal with issues as to the nature of
(Page 7)
- a possible claim or process which the plaintiff might bring or whether or not an action in trespass or on any other basis would now be out of time as suggested by Mr Gethin.
21 In my view the application falls to be determined on a more fundamental basis and that might be characterised variously as whether there is an arguable case that the plaintiff has a caveatable interest or a determination of the matter on the balance of convenience. In my view in the present circumstances they amount to the same thing.
22 The caveat has been lodged under s 137 of the Transfer of Land Act 1893. The statutory foundation of the plaintiff's claim to lodge it must be a claim of some estate or interest in the land. This is, of course, an extremely wide category and includes equitable as well as legal interests - see Municipal District of Concord v Coles (1905) 3 CLR 96 and Butler v Fairclough (1917) 23 CLR 78, per Griffith CJ at 91. The interest necessary to sustain a caveat must have the character of an estate or equitable claim upon the land itself. In the Tasmanian case of Woodberry v Gilbert (1907) 3 Tas 7, Clarke J listed seven categories of interests sufficient to maintain a caveat, including a right to the proceeds or a share in the proceeds of the sale of the land.
23 Whether that category would be sufficient is doubtful. The Full Court of the Supreme Court of South Australia held in Shepherd v Houston (1927) SASR 144 that no caveatable interest arose where based on a contractual right to share in the proceeds of the sale of the land.
24 In Custom Credit Corp Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42, Malcolm CJ at 45, quoting Barwick CJ with whom McTiernan and Owen JJ agreed in J and H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546 at 552, spoke of the purpose and effect of a caveat in the following terms:
"Its purpose is to act as an injunction to the Registrar-General to prevent registration of dealings with the land until notice has been given to the caveator. This enables the caveator to pursue such remedies as he may have against the person lodging the dealing for registration. The purpose of the caveat is not to give notice to the world or to persons who may consider dealing with the registered proprietor of the caveator's estate or interest though if noted on the certificate of title, it may operate to give such notice."
(Page 8)
25 The onus lies on the caveator in proceedings under s 138 of the Transfer of Land Act to demonstrate that there is a valid caveatable interest. That is because unless there is such a valid interest, there can be no serious question to be tried on a claim founded upon that premise - see Owen J with whom Malcolm CJ and Walsh J agreed in Custom Credit v Ravi Nominees at 48, quoting from the English case of Eng Mee Yong v Letchumanan (1980) App Cas 331 in which Lord Diplock, in delivering the advice of the Privy Council, said:
"This is the nature of the onus that lies upon the caveator in an application by the caveatee under s 327 for the removal of a caveat: he must first satisfy the court that on the evidence presented to it his claim for an interest in the property does raise a serious question to be tried, and having done so, he must go on to show that on the balance of convenience it would be better to maintain the status quo until the trial of the action, by preventing the caveatee from disposing of his land to some third party."
26 In this context I note there can here be no question of a serious question to be tried in the sense in which that expression is used in the authorities. There are no substantive proceedings to do with the subject land either on foot or contemplated.
27 Reverting for the moment to Custom Credit v Ravi Nominees, at 48 Owen J also referred to the Western Australian authority of Porter v McDonald (1984) WAR 271 in which this Court considered the approach to be taken to an application for removal of a caveat. There Rowland J, with whom Burt CJ agreed, said at 276:
"The practice with respect to the removal of caveats is one of long standing. The caveat will not be removed unless the claim to an estate or interest in the land appears to be without foundation. The courts will not, except in the most exceptional case, decide the matter on summons … It is also true that in more recent cases courts have indicated that in the exercise of discretion they will have regard to matters that would be relevant to an application for an interim injunction."
28 His Honour went on to refer to authorities and at 335 continued:
"The caveat under the Torrens system has often been believed to be a statutory injunction of an interlocutory nature restraining the caveatee from dealing with the land pending the
(Page 9)
- determination by the court of the caveator's claim to title to the lad in an ordinary action brought by the caveator against the caveatee for the purpose. Their Lordships accept this as an apt analogy with its corollary that caveats are available in appropriate cases for the interim protection of rights to title to or registrable interest in land that are alleged by the caveator but not proved."
29 That was a quote from the Privy Council in Eng Mee Yong v Letchumanan already referred to. Finally, I refer to what fell from Owen J in Custom Credit v Ravi at 50:
"By its very nature a caveatable interest must be a proprietary interest in land. The purpose of the caveat is to restrain the registered proprietor from dealing with the land in a way which will defeat or derogate from the incidents attaching to that proprietary interest until the respective rights of the parties have been honoured (if there is agreement) or determined (if there is disagreement)."
30 It may readily be seen, therefore, that as one would expect from the terms of s 137 of the Transfer of Land Act the purpose of a caveat is to prevent the caveatee dealing with the land until the caveator's claim to an interest in it can be determined. It seems to me that is simply not what is claimed nor sought by the plaintiff in this case.
31 As I understand it, Ms Sandford does not suggest the plaintiff has any legal or equitable interest in the subject land at all. I appreciate her submission that there is a claim for the proceeds of sale, but that, to my mind, is simply not enough in the circumstances of this case.
32 There is no suggestion otherwise of a legal or equitable mortgage to be compared with Lewenberg v Direct Acceptance Corporation Ltd (1981) VR 344, nor is it suggested there is any form of constructive trust as in Jandric v Jandric & Anor (1999) WASC 22, delivered on 18 May 1999, nor liability arising out of a charge on the land under a building contract as in Goldfields Homes Pty Ltd v Jones & Anor (2000) WASC 139 delivered on 31 May 2000.
33 I acknowledge that the law is that the balance of convenience is a factor to be considered in an application under s 138 of the Transfer of Land Act for the removal of an interlocutory caveat where an arguable case as to the existence of a caveatable interest has been demonstrated, the removal will be unusual and I approach the present application on the
(Page 10)
- basis of the same approach being applied as to an application for an extension of caveat.
34 I accept further, as Rowland J observed in Porter v McDonald, that the long-standing practice is that a caveat will not be removed unless the claim to the interest appears to be without foundation and except in the most exceptional case the courts will not decide that issue on summons or on an interlocutory application on affidavit evidence. However, I am compelled to the conclusion that this is such an exceptional case.
35 On the evidence before me I can discern no basis upon which the existence of a caveatable interest could reasonably be argued. Indeed, when regard is had to the avowed purpose for which the extension of the caveat is sought, namely not to preserve any interest which the plaintiff may have in the defendants' land but rather to put prospective purchasers on notice so that any contract they may enter into with the defendants for the sale and purchase of the land would hopefully, from the plaintiff's point of view, contain some condition which requires either the defendants or the intending purchaser to acknowledge an obligation to remove the sewerage works from the plaintiff's land and to bear the cost of that, it may be seen that the plaintiff is indeed not purporting to claim any caveatable interest and it follows that not only is there no arguable case for such an interest but no such case is in reality sought to be advanced. The application for extension of the caveat is accordingly refused. The plaintiff must pay the defendants' costs of the action.
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