Hoey v Lantern Holdings Pty Ltd

[2001] WASC 211

HOEY -v- LANTERN HOLDINGS PTY LTD & ANOR [2001] WASC 211

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASC 211
Case No:	CIV:2006/2000	Heard:	3 AUGUST 2001
Coram:	WHITE AUJ	Delivered:	10/08/01
No of pages:	5	Judgment Part:	1 of 1
Result:	Caveat to be removed forthwith
Category:	B
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Parties:	JANET IRVINE HOEY LANTERN HOLDINGS PTY LTD (ACN 009 221 587) REGISTRAR OF TITLES
Catchwords:	Transfer of Land Act Caveat Order requiring plaintiff to withdraw a caveat Turns on own facts
Legislation:	Transfer of Land Act
Case References:	Nil Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : HOEY -v- LANTERN HOLDINGS PTY LTD & ANOR [2001] WASC 211 CORAM : WHITE AUJ HEARD : 3 AUGUST 2001 DELIVERED : 10 AUGUST 2001 FILE NO/S : CIV 2006 of 2000 BETWEEN : JANET IRVINE HOEY

Plaintiff

AND

LANTERN HOLDINGS PTY LTD (ACN 009 221 587)
First Defendant

REGISTRAR OF TITLES
Second Defendant

Catchwords:

Transfer of Land Act - Caveat - Order requiring plaintiff to withdraw a caveat - Turns on own facts

Legislation:

Transfer of Land Act

Result:

Caveat to be removed forthwith

(Page 2)

Category: B

Representation:

Counsel:

Plaintiff : In person
First Defendant : Mr D K Cooper
Second Defendant : Mr D K Cooper

Solicitors:

Plaintiff : In person
First Defendant : Price Sierakowski
Second Defendant : Price Sierakowski

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

Nil

Case(s) also cited:

Nil

(Page 3)

1 WHITE AUJ: The plaintiff, Mrs Janet Irvine Hoey acts in person, having previously been represented by a firm of solicitors. Her former husband, Bernard Hoey, is a director of the first defendant, Lantern holdings Pty Ltd.

2 Mr and Mrs Hoey were married on 25 June 1977 and they separated on 16 March 1998. They have subsequently divorced and Mr Hoey has remarried. They have one child, Katherine, born on 7 August 1986.

3 After prolonged negotiations, Mr and Mrs Hoey entered into a Child Support Agreement dated 1 October 1998.

4 That Agreement provided, inter alia, that the plaintiff could register a caveat over the property at 13 Campbell Street, West Perth (owned by the first defendant) to secure an amount equal to one year's child support and any arrears, which might be owing to the plaintiff by Mr Hoey. The Agreement provided for the payment of child support at the annual rate of $6,500.00, payable fortnightly. That amount was to be adjusted on 1 July of each year to take account of inflation, in accordance with the Child Support Assessment Regulations. The first defendant charged its interest in the property in Campbell Street with payment of the child support and any arrears.

5 Paragraphs 8 and 9 of the Agreement provide:

"8. The wife shall within fourteen days of notice in writing given to her by the husband withdraw any caveat registered pursuant to paragraph 7 of this Deed provided that the husband and/or any person or corporate entity shall agree to the registration by the wife of a caveat over land or real estate in which such person or corporate entity has an equity no less than the equity of Lantern Holdings in the Campbell Street property at the time of the giving of such notice.

"9. The term 'equity' in paragraph 8 means –


(a) In relation to the Campbell Street property – the sale price or proposed sale price of the property less amounts secured by mortgage over the property,

(b) In relation to the new or substitute property – the purchase price of the property less any amounts

(Page 4)

proposed to be secured by mortgage over the property."

6 On 15 August 2000, the following order was granted by Anderson J by consent:

"1. The plaintiff shall provide a withdrawal of Caveat No G8882677 in registrable form within 10 days of the first defendant providing an executed mortgage in registrable form in favour of the plaintiff to the plaintiff for the principal sum of $30,500.00, such mortgage to be registered against the interest of the first defendant in the property situate at and known as 19 Hardy Street, South Perth.

2. The operation of Caveat No G888267 (sic) is extended until the occurrence of the event in paragraph 1 hereof or until 21 days after judgment in the substantive action to which the alleged caveatable interest relates, whichever event occurs first.

3. The first defendant do pay stamp duty of $81.25 and registration fees of $70.00 in respect of the mortgage.

4. There be no order as to costs.

5. There be liberty to apply on 24 hours notice."

7 The first defendant provided the executed mortgage as required, but the plaintiff did not and has not executed the withdrawal of caveat. Nonetheless, it seems that the plaintiff placed a caveat against the property at 19 Hardy Street, South Perth.

8 On 19 February 2001, the Family Court, in action No 5504 of 1998, ordered the plaintiff to sign a withdrawal of caveat with respect to caveat G897074 registered over the Campbell Street property, upon Mr Hoey paying $6,500.00 into an interest bearing account from which he was restrained from withdrawing without an order of the Court. That caveat number was in error and was later corrected to caveat number G8882677.

9 The deposit of $6,500.00 was made and, as the plaintiff had not complied with the order of the Family Court to withdraw her caveat. On 29 March 2001, the Family Court directed the Registrar of the Family

(Page 5)

Court to execute a withdrawal of caveat number G8882677, which was done.

10 The matter has been considered by the Family Court which has decided that the caveat over the Campbell property should be withdrawn.

11 I have considered the allegations made by the plaintiff in her affidavits but am not persuaded that these afford any reason for the retention of the caveat which she has been ordered to withdraw. The conditions stipulated in the Consent orders of Anderson J of 15 August 2000 have been met by the first defendant. The plaintiff's application to extend further the caveat must be dismissed and I am prepared to make an order to the effect that the condition stipulated in par 1 of the order of Anderson J of 15 August 2000 has been satisfied and that the caveat is to be removed forthwith.