Hilton v DEWI - [2003] WASC 117

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS
CITATION	:	HILTON -v- DEWI & ANOR [2003] WASC 117

CORAM

: BARKER J

HEARD

: 14 MAY 2003

DELIVERED

: 18 JUNE 2003

FILE NO/S

:	CIV 2759 of 2002

BETWEEN

: CHRISTOPHER BRIAN HILTON

Plaintiff
AND
YULI CHANDRA DEWI
RACHMAT AGUNG LEONARDI
Defendants

Catchwords:

Caveat - Application to discharge caveat under the Transfer of Land Act 1893 (WA) - Whether serious issue to be tried to justify maintenance of caveat - Whether caveat irregular on its face - Turns on own facts

Legislation:

Transfer of Land Act 1893 (WA), s 138

Result:

Application granted
Order discharging operation of caveat

[2003] WASC 117

Category: B

Representation:

Counsel:

Plaintiff	:	In person
Defendants	:	Mr K E F Yin & Mr J J H Lim

Solicitors:

Plaintiff	:	In person
Defendants	:	Lim & Associates

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

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

Deputy Commissioner of Taxation v Corwest Management Pty Ltd [1978]

WAR 129

His Grace Metropolitan Petar v Macedonian United Society of Western

Australia Inc [2003] WASC 15

Lydon v Ryding [2002] WASC 308
Midland Brick Corporation Pty Ltd v Welsh [2002] WASC 248
Perpetual Pty Ltd v National Australia Bank Ltd [2002] WASC 13

Pindan Pty Ltd v Sunny's Redevelopment Pty Ltd [2001] WASC 104

Case(s) also cited:

Nil

[2003] WASC 117

BARKER J

BARKER J:

Introduction

1 Before me is the defendants' application to discharge Caveat
I204747, which is registered under the Transfer of Land Act 1893 (WA) against all that piece of land being Lot 179 on diagram 94636 and being the whole of the land the subject of certificate of title volume 2141 folio 510, and which has the street address Lot 179 Burke Drive, Attadale ("the Attadale property").
2 The registered proprietors of the Attadale property are the
defendants, as joint tenants. Their address as disclosed on the certificate of title is at a place in Kuta, Bali, Indonesia. They appear to be citizens of Indonesia.

The plaintiff currently resides in Western Australia, but previously lived in Bali for a period. He appears to be an Australian citizen.

4 The plaintiff initially made an interlocutory application under s 138C
of the Act for an order extending the operation of the caveat in an action against the defendants in which the plaintiff seeks a declaration "that the partnership between the plaintiff, the plaintiff's wife and the defendants has an interest in the Land equal to the amount of partnership money used to purchase the land divided the purchase price of the land [sic]", as well as a final order extending the operation of the caveat. That action was commenced by writ of summons dated 20 December 2002. The Registrar of Titles does not appear at any point to have been made a party to the action, or to the interlocutory application for an order extending the operation of the caveat.
5 It appears…

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: [2003] WASC 117
Decision Date: 18 JUNE 2003

CaseChat Overview and Summary

The case of Hilton v DEWI involved a dispute over the registration of land. The respondents, Hilton, had lodged a caveat over certain land against the applicants, DEWI. DEWI sought to have the caveat removed under the Transfer of Land Act 1893 (WA). The key legal issues for the court to determine were whether there was a serious question to be tried that justified the maintenance of the caveat and whether the caveat was irregular on its face.

The court considered the nature of the caveat and the evidence provided by both parties. It was determined that the respondents had a legitimate interest in the land, as they had a contract of sale with a third party. However, the court found that the respondents had failed to establish a serious question to be tried that would justify the maintenance of the caveat. The court also found that the caveat was not irregular on its face, as it complied with the requirements of the Act. As a result, the court ordered that the caveat be discharged, and the applicants' application was successful.

The final orders of the court were that the respondents' caveat be discharged, and the applicants were awarded their costs of the application. The decision highlights the importance of establishing a serious question to be tried when lodging a caveat and the need for compliance with the requirements of the Act.

Orders