Hilton v DEWI
[2003] WASC 117
•18 JUNE 2003
| 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 |
| ||
| BETWEEN | : CHRISTOPHER BRIAN HILTON |
Plaintiff
AND
YULI CHANDRA DEWI
RACHMAT AGUNG LEONARDIDefendants
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 that the plaintiff initially applied ex parte by summons dated 20 December 2002 for an order extending the caveat. An order extending the caveat was made in chambers by Roberts-Smith J on 23 December 2002. That order extended the caveat until 4 pm on 13 January 2003 and required the plaintiff, amongst other things, to serve a copy of the application on the defendants or their solicitors within 14 days. On 13 January 2003, again it seems on an ex parte application, in chambers Roberts-Smith J further extended the operation of the caveat until further order. His Honour required that the plaintiff serve a copy of the order on the defendants within seven days and gave the parties liberty to apply on 48 hours' notice. A Memorandum of Appearance had earlier been entered on behalf of the defendants in the action on 8 January 2003.
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BARKER J
6 On 18 March 2003, it appears that Scott J in chambers, on the
application of the defendants "to dismiss the plaintiff's caveat", made an order to that effect, the plaintiff having not appeared on the hearing of the defendants' application, but upon the condition that the defendants' counsel undertake to prove service by affidavit. On 20 March 2003, Steytler J in chambers, on the application of the plaintiff by chamber summons dated 19 March 2003, set aside the orders made by Scott J on 18 March 2003 and made a further order extending the operation of the caveat until further order. Steytler J also ordered that the plaintiff file and serve a statement of claim in the action within 21 days and that the defendants' application dated 6 March 2003 be referred for a hearing at a special appointment.
Thus, what is before me now is the defendants' application to remove
the caveat.
The plaintiff's case
8 The plaintiff, in accordance with the order of Steytler J, filed a
statement of claim in the action on 8 April 2003. The defendants filed a defence and counterclaim on 24 April 2003. The affidavits relied upon by the defendants in support of their application to remove the caveat and by the plaintiff in his opposition to that application develop the allegations contained in the pleadings. It should be noted in passing that the plaintiff has at all material times acted on his own behalf and that the defendants have been represented by solicitors and counsel. This shows to an extent in the terms of the statement of claim filed by the plaintiff. Whereas in the indorsement of claim on the writ of summons the plaintiff seeks a declaration that a partnership between himself, his wife and the defendants has an interest in the land the subject of the caveat "equal to the amount of partnership money used to purchase the land divided the purchase price of the land [sic]", the statement of claim does not expressly refer to a partnership, but does allege facts upon which it may be possible to infer that there was a relevant partnership, at least if the facts and matters relied upon had occurred within the State of Western Australia. It appears, however, that they occurred in Indonesia.
9 When the plaintiff lodged his caveat under the Act, he supported it
with a statutory declaration made 14 August 2002. In it, he declared that the defendants were both directors of "P. T. Kin Khao Indonesia which is a foreign company". The defendants respectively are wife and husband. He further said that the defendants were both "business associates of mine". The plaintiff further declared that he was the "sole director of
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Donsbury Pty Ltd (by inference an Australian company) trading as Kin Khao Restaurant ACN 081 482 911". He further declared that "through our business association our joint moneys were used to purchase the property." He thus claimed to have an interest in the property the subject of the caveat "as a beneficial co-owner".
10 In the plaintiff's affidavit sworn 20 December 2002, he states that
some years ago, prior to 1995, he worked as head chef in a Mexican restaurant in Bali. He commenced a relationship with a woman known as Duan with whom he began living as man and wife.
11 The plaintiff states that, in about 1995, he and Duan decided to start
their own Thai restaurant in the Seminyak district of Bali. They did so and called the restaurant "Kin Khao". The two of them, he says, had an equal share in that business. He further says that, after about six or eight months, in about 1996, they expanded the size of their restaurant.
12 The plaintiff says that, in about 1996, when he and Duan realised that
their business was doing well, they decided to register the name "Kin Khao" and its logo "with the Indonesian authorities". He says that the name and logo were in fact registered in Duan's name because she was Thai and the restaurant was Thai. He further says that, under the law in Indonesia, if a name is registered, "you then have the right to use that name in relation to the field of business in respect of which the name is registered".
13 The plaintiff further says that, about a year or so later, he and Duan
were approached by the defendants, whom he describes as a Chinese-Indonesian couple. He says the defendants wanted to open a Thai restaurant and sought the plaintiff and Duan's help.
14 The plaintiff states, or at least it follows from what he states in his
affidavit, that the defendants and he and Duan made an agreement whereby Duan and he were to supply recipes and assist in the setting-up of the new Thai restaurant, train staff and teach them how to run the restaurant, provide a head chef and allow the defendants to use the "Kin Khao" name. In return, the plaintiff says he and Duan were to be paid a fee for the use of the Kin Khao name and also 8 per cent of the gross turnover of the business. The plaintiff says an agreement in writing was signed, but he does not have a copy of it. Although he cannot recall with certainty, the plaintiff believes that only the second-named defendant and Duan were mentioned in the agreement and only they signed it.
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15 The plaintiff says that, in about July 1997, the new Thai restaurant,
known as Kin Khao Kartika Plaza, was opened in Bali and that he and Duan were assisting with this restaurant under the written agreement, but were also running their own Kin Khao restaurant in Seminyak at the same time. He says that, after about four to eight weeks, when the Kin Khao Kartika Plaza restaurant had established a good turnover, the defendants asked Duan and him to become partners with them. The plaintiff states that:
"To obtain our 50% share in the business Duan and I have to pay for our share of the cost of the equipment of the restaurant. … We would not be paid for running the restaurant even though [the defendants] were not involved with the management of the restaurant and would also have a 50% share of the business. [The second-named defendant] owned the building, so it was agreed that the business would lease the building from him for 10 years at a monthly rent. Each of the four of us would be able to take drawings from the business every month. A written agreement was signed. This time the agreement was drafted by [the second defendant's solicitor]. I recall with certainty all four of us signed the agreement. A house was built above the restaurant and Duan and I were allowed to live there. This fact was mentioned in the agreement."
16 The plaintiff says that, at some time in late 1997, he learned of the
existence of the company called "P T Kin Khao" (by inference a company created under the law of Indonesia) when he noticed the company name mentioned in some of the accounts of the business. He says the business records were kept in the building where he and Duan lived upstairs. The defendants had set up the company, he says, because under Indonesian law once a business employs a certain number of people, certain laws apply in relation to payment of taxes and welfare of employees. He says the defendants were the directors and shareholders of the company. In other words, neither he nor Duan was a director or shareholder. He says he was "not concerned about this" because in Indonesia the registered owner or contracting party often has to be an Indonesian. For example, he says, although Duan and he had their own business at the Kin Khao Seminyak restaurant, the lease for that restaurant was in the name of one of their Indonesian employees. (It also appears Duan is a Thai citizen.)
17 The plaintiff now says that he does not think that the defendants
should have been able to use "Kin Khao" for the company name because the name is registered by Duan, although he now "thinks" that the
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second-named defendant may have circumvented this restriction by claiming that Kin Khao was the name of one of his sisters. In any event, at this point, the plaintiff states that it was his belief that the "business was owned by the four of us and the company was just set up to comply with the Indonesian business law".
18 The plaintiff then says that the four of them - the plaintiff, Duan and
the defendants - had discussed opening a restaurant in Australia on quite a number of occasions. Additionally, he says, the second-named defendant wanted to apply for residency in Australia and wanted his children to go to university in Australia. He told the plaintiff that, to improve his chances of being accepted as a business migrant, he should invest a certain amount of money in Australia. In the event, the plaintiff says the first-named defendant decided that Western Australia was an appropriate place for her children to study.
19 The plaintiff also says that he was interested in opening a restaurant
in Perth and "it was decided that the Perth restaurant be run through a company". He implies that a further agreement was made or discussed between himself, Duan and the defendants. He says:
"The terms of the agreement would be the same as for Kin Khao Kartika Plaza: Duan and I would help run the restaurants and would have a 50% share. We envisaged that I would run the Perth restaurant while Duan would run Kin Khao Kartika Plaza in Bali. The money to … set up the restaurant in Perth was to come from the Kin Khao Kartika Plaza business, so this meant that each of the four of us was contributing equally to those costs."
20 The plaintiff says that, in early 1998, Duan and himself and the
first-named defendant and her sister decided to travel to Perth. He says it was decided: "We would bring down money from Kin Khao Kartika Plaza to set up the restaurant in Perth." He notes that the second-named defendant owned a money changing business. He says that he recalls that, the day before they were to fly to Perth, one of the second-named defendant's staff - which I understand to be a reference to a member of staff of a separate money changing business operated by the second-named defendant - produced to the second-named defendant papers in respect of a transaction in excess of 500,000,000 "rupees" (having regard to the context and the evidence of the second defendant, the plaintiff's reference to "rupees" should be understood as a reference to "rupiah"). The plaintiff says: "I saw a slip of paper record that over
[2003] WASC 117
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500,000,000 rupees [sic] had been withdrawn from the Kin Khao accounts." He says that no "rupees" were physically withdrawn. He says that, when he later returned to Bali, as I understand it, after a visit to Western Australia with the first-named defendant and others, he saw a statement for that month, which indicated that the money had been withdrawn. He also says that he watched as the second-named defendant "counted A$100,000 cash on the table. The money was put into a bag. I was the one who carried the bag with money on the flight to Perth." He says, however, that it was "decided that the first-named defendant would be the person to declare to Customs that she was bringing A$100,000 into Australia." But he then carried the bag after she declared the money.
21 The four persons mentioned then visited Perth and met relatives of
the defendants who apparently live in Perth and own the Bentley Inn. Various properties were visited. He says suitable locations to set up a restaurant were considered. After a short stay, the plaintiff says the first-named defendant and her sister returned to Bali and then he returned to Indonesia about four weeks later, after looking at other locations.
22 The plaintiff says that, in February 1998, he set up the company,
Donsbury Pty Ltd, in Australia trading as Kin Khao Thai restaurant. He says he did this while he was still in Australia and after the first-named defendant had flown back to Bali. He says he is the sole director and shareholder of the company. He says it was understood at the time he set it up that, once a suitable site had been found for a restaurant, he, Duan and the defendants "would also become directors".
23 The plaintiff says that, upon his return to Indonesia, the
second-named defendant told him that the defendants had agreed to purchase a property in Nedlands, a suburb of Perth. He says he was told this was to be a personal investment on their behalf. The plaintiff says that:
"After looking through our financial statements for the business in Indonesia I discovered that the $100,000 bought [sic] to Australia had not been returned to Indonesia. I then realised that money from our business had been used to purchase this property. [The second-named defendant] assured me that he would reimburse the company the $100,000."
24 The plaintiff says that, in the event, the Nedlands property was not
purchased, but the Attadale property was. He says the asking price was approximately $650,000. He says that he queried the second-named
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defendant about the $A100,000 and was told that the money had been used to purchase the Attadale property as a deposit. He says that the second-named defendant "assured me he would return the money to our business account."
25 The plaintiff says that the property was registered in the name of the
defendants in September 1998 and that this was done to enable the
defendants to apply for residency permits in Australia. He says:"The purchase of the land was financed with a mortgage from BankWest, but I know that the $100,000 which had previously been withdrawn from the Kin Khao account was also used to buy the land."
He also says that, as time went by, he discovered that the A$100,000 had not been returned to the account.
26 The plaintiff says that, in late 1998, Duan and he opened another Kin
Khao restaurant with another two Indonesian partners and that the defendants did not have an interest in that business. Again, he says, there was no written agreement for the business. He says they opened the business in Ubud, on the island of Bali, and Duan and he had a 50 per cent share of the business.
27 It appears that, for the plaintiff to remain in Indonesia and work
there, it was necessary for someone to sponsor him when he applied for a visa. He says that the second-named defendant acted as his sponsor and wrote a letter to the Indonesian authorities stating that he (the second-named defendant) was the owner of Kin Khao restaurant and that the plaintiff was a "marketing consultant" and that he guaranteed his financial situation during his stay in Indonesia. The plaintiff says that, until then, he had been sponsored by another friend.
28 The plaintiff further says that, in about 1999 during one of a number
of regular dinners that he, Duan and the defendants enjoyed, the four of them agreed to open another Kin Khao restaurant, this time in Padma, another part of Bali. He says there was a written agreement, the terms of which were the same as before: that Duan and he would help run the restaurant and would have a 50 per cent share.
29 In the event, relations between the plaintiff and Duan and the
defendants did not fare well. In 1999 Duan gave birth to the plaintiff's son. The plaintiff says that the Kin Khao Ubud restaurant did not do well. He says that, after about three to five months, following the opening of the
[2003] WASC 117
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Kin Khao Padma restaurant, "my Indonesian partners bought out Duan's and my interest in that restaurant". In about 2000, the lease for the Kin Khao Seminyak restaurant expired and they had to look for another location for their restaurant. They eventually opened a new one. They leased the premises from the second-named defendant for this purpose.
30 The plaintiff says that Duan, himself and the defendants were
drawing two payments per month from the business - by this time - one from Kin Khao Kartika Plaza and one from Kin Khao Padma. He says each restaurant had its own bank account. He says the accounts "would ultimately have been" in the name of the company "P T Kin Khao" and that it had no business other than the Kin Khao restaurants.
31 When one considers the plaintiff's account of these business
arrangements, it appears he had little knowledge of the detailed business
arrangements he asserts. He says in his affidavit that:"The records of the restaurants were fully computerised and the accounting staff generated results every month, from which the four of us would take our drawings. However, the accounts focused on running the business and dealt with food and drink ordered and recording all stock and equipment, income and expenses (rent, electricity, etc). There was no mention of who the owners of the business were or what shares the business was owned, perhaps in case the business was audited. Central Moneychanger [the second-named defendant's other business] effectively was the bank for the business and we took our drawings from the money changer. We either took the drawings in cash or had it paid into our accounts with Central Moneychanger."
The plaintiff says that, in relation to tax, P T Kin Khao, the company, dealt with this matter through accountants.
33 In early February 2002, for reasons which are not entirely clear from
the plaintiff's account, the relationship between him and the defendants, and also between him and Duan, broke down, as a result of which he says he left Indonesia and returned to Western Australia with the assistance of Duan. Duan, however, remained in Indonesia.
On 14 August 2002, he lodged the caveat against the Attadale
property.
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35 He says that he later came to believe that Duan and the
second-named defendant "were having an affair". He later returned to Bali and physically took custody of his son and returned with him to Perth.
36 The plaintiff says that, once back in Perth with his son, he spoke to
Duan once on the telephone. He says that she said that "she had been wrong and asked how much she owed me". He says that he wrote a letter to the second-named defendant and "offered to settlement for $150,000". He says, however, that he believes the 25 per cent in the Kin Khao business would have been worth much more than that, at least prior to the infamous Bali bombing of 12 October 2002.
37 The plaintiff says that he has now discovered from the Indonesian
Consulate that the visa that was issued to him for Indonesia did not allow him to work there.
The defendants' case
38 In response to the plaintiff's account of events, the second-named
defendant has sworn two affidavits dated 28 January 2003 and 19 April 2003 denying material allegations. He says that he met the plaintiff and Duan in 1997 and understood the plaintiff was Duan's boyfriend. He says that he and his wife are still married and the plaintiff's suggestion that they were divorced is pure fabrication.
39 The second-named defendant says that all his business dealings were
with Duan and the plaintiff was only involved with him socially as her boyfriend. He says that Duan owns the Kin Khao trademark and that he entered into a franchise agreement with her to use the trademark for his restaurants. He denies that the plaintiff was ever a party to any business agreement and denies that the plaintiff was ever involved in any of his businesses. He says that the plaintiff was a witness to the franchise agreement because it was convenient, but he was not a party. He denies that there was ever a written agreement as alleged, and puts the plaintiff to the strictest level of proof.
40 The second-named defendant says that, having acquired rights to use
the Kin Khao trademark, he assigned those rights to the company P T Kin Khao Thai restaurant. He says, although his wife is a shareholder and "Komisaris" in P T Kin Khao, she has never been actively involved and is predominantly a housewife.
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The second-named defendant denies that his wife and he were ever involved with the plaintiff's businesses in Australia.
The second-named defendant says that he gave a sum of A$150,000 earned from his money changing business to his wife who brought it with her to Australia on 27 May 1998. He says the plaintiff was one of her travelling companions and he knew that his wife carried a large sum of cash when she completed the Customs' declaration form on arrival. He denies that the sum was A$100,000.
43 The second-named defendant also denies that there is any written (or
other) agreement or joint venture with the plaintiff in the Kin Khao restaurant in Padma, Bali. He says this is simply another restaurant that he operates pursuant to a franchise agreement with Duan.
44 The second-named defendant says that, on or about 16 February
2000, he attempted to settle a dispute between Duan and the plaintiff. He says the plaintiff wanted to take his son with him if he was not paid the full proceeds from the sale of Duan's house. He says Duan succumbed to the plaintiff's demand and gave him (the second-named defendant) 360,000,000 rupiah to exchange for the plaintiff. He recorded this transaction on his office computer, as part of the normal course of his business as a money changer, which is required by Indonesian law. He says the 360,000,000 rupiah was exchanged into A$75,845, and US$300 in big notes and US$60 in small notes and all of these were given to the plaintiff. He says the plaintiff required the US notes to pay for his air ticket.
45 The second-named defendant further says that the plaintiff was not
involved in the Kin Khao restaurant in Seminyak. He says that Duan leased the premises from him and operates the restaurant business on her own. A copy of the lease agreement is annexed to his affidavit and marked "Y10".
The second-named defendant further denies that the plaintiff has any involvement with P T Kin Khao Kartika Plaza or Kin Khao Padma.
47 The second-named defendant also emphatically denies that there is
an affair between Duan and himself and says of the letter requesting settlement of A$150,000, that it is a "thinly disguised attempt to blackmail" him.
| 48 | The first-named defendant by affidavit made 28 January 2003 confirms that she received the sum of A$150,000 from her husband, the |
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second-named defendant, and brought it to Australia with her on 27 May 1998. She says she completed the Customs' declaration form on arrival. She denies that she only carried a sum of A$100,000.
49 The first-named defendant says that she entered into an agreement on
18 June 1998 to purchase the Attadale property the subject of the caveat. She produces a copy of the contract of sale dated 18 June 1998. She says a deposit of $A40,000 was paid from her Citibank account on 19 June 1998. Annexed to her affidavit marked "YL1" is a copy of her Citibank statement of 20 July 1998. She says the remainder of the purchase price comprised a loan of $A612,500 from BankWest and cash of $A261,765. She says both sums were paid from her BankWest account number 145-007820-7 and she annexes those accounts verifying those payments.
50 Duan, whose full and proper name is Sirichok Yensamphao, has also
sworn an affidavit filed on behalf of the defendants and sworn 27 January 2003. She says that she started the Kin Khao restaurant in 1994 in Seminyak. She says the plaintiff often came to eat and drink in the restaurant and they commenced a de facto relationship in 1995. She says the plaintiff never worked in her restaurant and he never had any share in her business or any of her assets in Indonesia. She says they were never married and he was always known as her boyfriend. She says there has never been any written agreement between them and that the plaintiff does not have any share in her assets. She says that when he was with her she supported him financially.
Duan says that she already knew the defendants in 1995 and the plaintiff came to know them through her introduction.
52 Duan says that the second-named defendant approached her with a
proposal to franchise the Kin Khao restaurant to him and that she applied for registration of the trademark of Kin Khao on 10 July 1996 before she finalised the franchise agreement on 27 August 1996. She produces the trademark certificates issued on 22 September 1997 and the franchise agreement of 27 August 1996. She says the franchise agreement speaks for itself and contradicts the plaintiff's statement that he had obligations or rights under the franchise agreement.
53 Duan says that, when the second-named defendant opened a new
restaurant known as Kin Khao Kartika Plaza, it was pursuant to a franchise agreement and neither she nor the plaintiff had any interest in it. She denies that she, the plaintiff and the defendants entered into any written agreement concerning that restaurant, or any other. She denies
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that the plaintiff ever had a share of the ownership of her business at Kin Khao Seminyak restaurant. She says the plaintiff has an intimate knowledge of her and the defendants' businesses because of his relationship as her boyfriend.
54 However, Duan admits the allegation of the plaintiff that there was a
plan by the two of them to open a restaurant in Australia. She says it did not involve the defendants. She says she agreed with the plaintiff that he would operate the Australian restaurant by himself and she would provide finance for him. She says her intention of setting him up with a business in Australia was to make him financially responsible and hopefully "he would value the money that I had given to support him". To that end, she paid a deposit of $A10,000 for the lease of restaurant premises in Western Australia.
55 Duan denies, however, that the plaintiff ever had any interest or
share in the restaurant in Ubud. She says the Kin Khao restaurant in Padma was only a franchise arrangement between the second-named defendant and herself. She denies there was a written agreement concerning that business and demands the plaintiff produce it, which he has not.
In short, Duan denies that any of the Kin Khao restaurants are businesses in respect of which the plaintiff has any interest.
Whether the caveat should be discharged having regard to s 138C
57 In an application under s 138 of the Act, it is well established that the
onus lies on a caveator to demonstrate that there is a valid caveatable interest, or, more correctly, that there is a serious issue to be tried on the issue: Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42 at 48 per Owen J, with whom Malcolm CJ and Walsh J agreed. The same rule applies on an application under s 138C of the Act, despite the differences in the wording of the two provisions: see Pindan Pty Ltd v Sunny's Redevelopment Pty Ltd [2001] WASC 104 per Murray J at pars [1] - [9]; Perpetual Pty Ltd v National Australia Bank Ltd [2002] WASC 13; His Grace Metropolitan Petar v Macedonian United Society of Western Australia Inc [2003] WASC 15 at [33].
58 Where an order extending a caveat has been made pursuant to s 138C
and an application is later made to discharge that order, that is to say, in effect to discharge the caveat, it seems to me that a similar test should also be applied and that the onus again falls on the caveator to show there is a
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serious question to be tried that supports the maintenance of a caveat. Of course, if an application under s 138C has been fully considered in a contested proceeding, the later application of a registered proprietor to discharge the caveat, pursuant to the general liberty to apply to discharge an order earlier made, may either be dismissed as an abuse of process or otherwise be considered unlikely to succeed in the absence of materially changed circumstances. In this case, however, the earlier order extending the caveat until further order was made effectively ex parte and the defendants were never heard on it.
59 It follows, in my view, that on the present application an onus falls
on the plaintiff as caveator to justify the maintenance of the caveat. As noted, the drafting differences that empower the Court, in different circumstances, under s 138 and s 138C to extend the operation of a caveat do not affect the test by which a Court should decide whether a caveat may be extended. As the authorities referred to above disclose, while s 138C(2)(a) says the Court may extend the caveat "if satisfied that a caveator's claim has or may have substance", that provision does not require the Court to extend a caveat in circumstances where there is no "serious issue to be tried".
60 While there is much dispute about whether the plaintiff had entered
into business relations with Duan and the defendants under Indonesian law, on the basis of the affidavit evidence before me, I am not at all satisfied that the plaintiff has established that there is a "serious issue to be tried" in respect of his claim to "beneficial co-ownership" of the Attadale property. I am unable to conclude that, at any material time, the plaintiff had any form of recognisable interest (which presumably would be an interest under the law of Indonesia) in the Kin Khao restaurants in Bali, Indonesia. That he had any such interest is hotly denied by the defendants and Duan. It is not necessary (or appropriate) for me to attempt to determine this disputed issue here. Even if the plaintiff did (or does) have such an interest in one or other of those businesses under Indonesian law does not determine whether he has a caveatable interest in the Attadale property in Western Australia.
61 Seemingly, on the plaintiff's account, a portion of the moneys used as
a deposit or down-payment on the Attadale property was provided by an Indonesian company known as P T Kin Khao. On the face of it, he has no interest in that company. It is one in respect of which the defendants are the controlling directors and shareholders. If the moneys of that company were used to purchase the Attadale property, I would find it difficult to
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conclude, on the basis of the materials before me, that the plaintiff had
any particular interest in those moneys.62 However, the most direct evidence in relation to the source of the
moneys used to purchase the Attadale property comes from the first-named defendant. The evidence provided by the plaintiff that seems to throw doubt on the defendants' case, appears to me to constitute mere innuendo and conjecture. I do not think that, on the evidence before me, any proper inferences can be drawn from a sound factual basis to support the plaintiff's account. If one goes to the account provided by the first-named defendant, the source of all moneys used to purchase the Attadale property, apart from the bank loan, provided by BankWest, were from her funds. There is nothing clearly or otherwise to suggest that those funds were sourced from any funds in which the plaintiff arguably has an interest. In other words, there is no evidence to support what appears to be an implied plea by the plaintiff, that the defendants purchased the Attadale property with moneys that were, at least in part, beneficially held to the credit of the plaintiff or in respect of which the defendants knew - the first-named defendant in particular - had come into their possession by reason of some breach of trust or breach of fiduciary obligation owed to the plaintiff.
Conclusion as to whether there is a "serious issue to be tried"
63 Accordingly, for the purposes of this application, I am not satisfied
that the plaintiff is able to establish that there is a serious issue to be tried in respect of the claim he makes in the statutory declaration supporting the caveat that he is a "beneficial co-owner" of the property.
For that reason, I discharge the caveat.
Whether the caveat is irregular on its face
65 On behalf of the defendants, it is also submitted that there should be
an order discharging the caveat because the caveat is irregular on its face. It is said that the interest claimed as "beneficial co-owner" is meaningless and incomprehensible and, when read with the statutory declaration filed in support of it, does not identify any relationship between the parties that discloses any interest in property.
66 There is ample authority to show that, where a caveator claims an
interest that is not sustainable, the caveat should be treated as irregular and be discharged. For example, if an absolute caveat is lodged where the
[2003] WASC 117
BARKER J
caveat should have been framed to protect a limited interest claimed by a caveator, the caveat should not be extended: Deputy Commissioner of Taxation v Corwest Management Pty Ltd [1978] WAR 129; Midland Brick Corporation Pty Ltd v Welsh [2002] WASC 248; Lydon v Ryding [2002] WASC 308.
67 In this case, it is said on behalf of the defendants that the most the
plaintiff could have caveated for, given the matters set out in his statutory declaration and affidavit filed in relation to the present application, is a beneficial interest in respect of $25,000, it being a 25 per cent interest in the A$100,000 that he says belonged to the restaurant business and were inappropriately applied in assisting the purchase of the Attadale property. Perhaps that is right, although I am not sure it necessarily follows.
68 Here, both in the caveat and in his affidavit supporting it, the plaintiff
appears to claim an interest as a tenant in common in equity with the defendants (and Duan) in the property. It may possibly be that, on the basis put forward in his affidavit, such a claim as expressed in the caveat is too extensive. In some cases, however, it has been recognised that the claim as expressed in the supporting declaration may serve to narrow the apparent ambit of the interest as expressed in the caveat: Midland Brick Corporation Pty Ltd v Welsh (supra) at [61] - [67].
69 In the event, it is not necessary for me to decide whether the caveat
should be discharged on the basis that it is irregular on its face. Ordinarily, however, the interest claimed in the caveat should be expressed in no wider form that is supportable by a supporting statutory declaration. Arguably, in this case by reason of the use of the expression "beneficial co-owner" in the caveat and the outline of the claim in the statutory declaration filed with it, a person affected by the caveat would understand the nature and extent of the interest claimed.
Conclusion and order
70 For these reasons, the application of the defendants should succeed
and there should be an order discharging the operation of the caveat
I204747 as of the date of this order.
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