Hoon v Westpoint Management Ltd
[2011] WASC 239
•7 SEPTEMBER 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: HOON -v- WESTPOINT MANAGEMENT LTD [2011] WASC 239
CORAM: CORBOY J
HEARD: 8 FEBRUARY, 15 & 21 MARCH 2011
DELIVERED : 7 SEPTEMBER 2011
FILE NO/S: CIV 1117 of 2004
BETWEEN: LEE GEOK HOON
Plaintiff
AND
WESTPOINT MANAGEMENT LTD
First DefendantPARAGON APARTMENTS LTD
Second DefendantREGISTRAR OF TITLES
Third Defendant
Catchwords:
Caveats - Whether caveat should be removed following dismissal of action for specific performance of contract of sale for want of prosecution - Purpose of a caveat and the exercise of the court's discretion to remove - Whether purchaser retains a caveatable interest - Action for specific performance and time limitations - Laches - Turns on its own facts
Legislation:
Limitation Act 1935 (WA)
Result:
Order made for removal of caveat
Category: B
Representation:
Counsel:
Plaintiff: Mr S S Ludher
First Defendant : No appearance
Second Defendant : Mr J A Thompson
Third Defendant : No appearance
Solicitors:
Plaintiff: Rikhraj
First Defendant : No appearance
Second Defendant : Corrs Chambers Westgarth
Third Defendant : No appearance
Case(s) referred to in judgment(s):
Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57
Bahr v Nicolay [No 2] (1988) 164 CLR 604
Boomalli Ltd v Hake [1985] WAR 7
Brocx v Hughes [2010] WASCA 57
Central Trust and Safe Deposit Company v Snider [1916] AC 266
Chief Commissioner of Stamp Duties v ISPT Pty Ltd (1998) 45 NSWLR 639
Composite Buyers Ltd v Soong [1995] 38 NSWLR 286
Custom Credit Corporation Ltd v Chellaston Pty Ltd (Unreported, WASC, Library No 930340, 10 June 1993)
Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42
Duke v Royalstar Pty Ltd [2001] WASCA 273
Eng Mee Yong v Letchumanan [1980] AC 331
Fairweather v Fairweather (1944) 69 CLR 121
Fitzgerald v Masters (1956) 95 CLR 420
Genrich v Maitland Holdings Pty Ltd [1982] Qd R 58
Guardian Loans Pty Ltd v FTFS Holdings Pty Ltd [2009] NSWSC 1163
J & H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546
Lamshed v Lamshed (1963) 109 CLR 440
Leros Pty Ltd v Terara Pty Ltd (1992) 174 CLR 407
Lysaght v Edwards (1876) 2 Ch D 499
McCourt v National Australia Bank Ltd [2010] WASC 121
McDowall v Reynolds [2006] QSC 414
National Australia Bank v McCourt [2010] WASC 237
Navarac Pty Ltd v Moondancer Holdings Pty Ltd [2009] WASCA 95
P & O Nedlloyd BV v Arab Metals Co (No 2) [2007] 1 WLR 2288
R v McNeil (1922) 31 CLR 76
Tadrous v Tadrous [2009] NSWSC 407
Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315
The Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [2008] WASC 239; (2008) 39 WAR 1
Thomson v Richardson (1928) 29 SR (NSW) 221
Varney v Anderson [1988] 1 NZLR 478
Verebes v Verebes (1995) 6 BPR 14,408
CORBOY J:
The application and the result
By an originating summons dated 3 February 2004, Ms Hoon sought an order under s 138C of the Transfer of Land Act 1893 (WA) (TLA) extending the operation of caveat no H833244 (the Caveat) lodged against the title to lot 26 on strata plan 39886 and being the whole of the land comprised in certificate of title volume 2213 folio 226. The land was a strata titled unit, Apartment 2C, in a development known as Paragon Apartments; I will refer to the land as Apartment 2C. Westpoint Management Ltd (Westpoint) and Paragon Apartments Ltd (Paragon) were the registered proprietors of Apartment 2C.
The Caveat was dated 7 August 2001. It claimed an estate or interest in Apartment 2C pursuant to a contract of sale dated 20 October 2000 by which Ms Hoon agreed to purchase and Westpoint and Paragon agreed to sell the strata titled unit (the Apartment 2C Contract). According to a statutory declaration made by Ms Hoon in support of the Caveat (attachment 'RM‑5' to the affidavit of Russell Harry Morgan sworn 15 December 2010 (Mr Morgan's First Affidavit)), a certificate of title for Apartment 2C was issued on 23 May 2001 and stamp duty was paid on 12 July 2001 in anticipation of settlement. However, settlement did not occur despite requests by Ms Hoon's solicitors and the Caveat was lodged.
Ms Hoon commenced proceedings on 1 March 2002 seeking orders for specific performance of the Apartment 2C Contract (CIV 1267 of 2002) (the Action). The application to extend the Caveat was made after the Registrar for Titles issued a notice under s 138B TLA on 14 January 2004. The Action remained on foot at the time that the notice was issued.
On 4 February 2004, Roberts‑Smith J extended the operation of the Caveat until further order and otherwise adjourned the matter to a date to be fixed. However, no step was taken in the proceedings until 16 December 2010 when Paragon filed a notice of intention to proceed. In the interim, a liquidator had been appointed to Westpoint and receivers and managers to Paragon (see Mr Morgan's First Affidavit, pars 2 and 6 and attachments 'RM‑1' to 'RM‑3'). Further, the Action had been struck out for want of prosecution under O 29A r 21(1) Rules of the Supreme Court 1971 (WA), effective on 16 June 2010 (Mr Morgan's First Affidavit, par 12 and attachment 'RM‑7').
On 17 January 2011, Paragon filed a summons seeking orders for the removal of the Caveat. The grounds for the application were that the order extending the Caveat had been made as Ms Hoon's claim for specific performance of the Apartment 2C Contract had not been determined; however, the Action had been dismissed so that the basis on which the order had been made had gone.
The liquidator of Westpoint consented to the application. The Registrar indicated that he did not wish to appear at the hearing of the application.
Ms Hoon opposed the application to remove the Caveat, substantially on the ground that she remained the equitable owner of Apartment 2C. She also emphasised that she had performed her obligations under the Apartment 2C Contract by providing the agreed consideration and by paying the stamp duty payable on the contract and the transfer of title.
I have concluded that the Caveat ought to be removed notwithstanding those matters.
The evidence in the application
Paragon relied on Mr Morgan's First Affidavit and on a further affidavit that he made on 14 March 2011 (Mr Morgan's Supplementary Affidavit). It also relied on an affidavit sworn by Camille Susan Goucke on 23 March 2011.
Ms Hoon made an affidavit on 18 February 2004 in support of her originating summons. However, her counsel indicated at the hearing of Paragon's application that he did not rely on that affidavit and only read an affidavit sworn by Peter Thiam Leong Huat on 10 March 2011 (Mr Huat is Ms Hoon's husband). As a result, certain annexures to Ms Hoon's affidavit were tendered by Paragon.
The contract for the sale and purchase of Apartment 2C
Exhibit 1 was the offer and acceptance for the sale of Apartment 2C that formed part of the Apartment 2C Contract. The purchase price for the apartment was $217,363, the offer and acceptance being endorsed with a statement that 'payment has already been made pursuant to agreement dated 10.11.99'. The settlement date was said to be specified in special conditions annexed to the offer and acceptance. The special conditions were not tendered.
Exhibit 2 was an agreement to purchase a business known as 'Huntingdale Newsagency', dated 10 November 1999 and made between Sunchance Pty Ltd (Sunchance) as purchaser and GLT Trading Pty Ltd (GLT) as vendor (the Huntingdale Newsagency Contract). The purchase price for the business was $400,000. The special conditions to the contract provided that, '[a]t settlement the sum of $400,000 … is to be paid by [Sunchance] to [GLT's] representative, less $217,363 which is to be satisfied by the transfer of title to Apartment 2C (Lot 26) of Paragon Apartments … in accordance with the contract of sale dated 30 July 1999'.
Mr Huat stated in his affidavit that in 1998 he operated a business that traded as 'Huntingdale News'. He was approached in that year by a person who he assumed was a broker acting for Westpoint and Paragon. That person negotiated the sale of his business and also advised him to purchase Apartment 2C as 'part set‑off' against the sale price. Accordingly, I infer that the Huntingdale Newsagency Contract was the agreement referred to in the Apartment 2C Contract.
The only matters that were not explained by the contract documents, when read with Mr Huat's affidavit, were the reference in the Huntingdale Newsagency Contract to a contract of sale dated 30 July 1999 and the fact that the contract was made with Sunchance and not Westpoint and Paragon.
Mr Morgan stated in his supplementary affidavit that the receivers appointed to Paragon made a 'commercial decision not to actively engage' in the Action (Mr Morgan's Supplementary Affidavit, par 7). However, copies of the pleadings were obtained from the court file for the purpose of Paragon's application. They were attached to Mr Morgan's Supplementary Affidavit and disclosed that Westpoint, Paragon and Sunchance had commenced third party proceedings against GLT and Mr Huat as part of the Action.
The pleadings in the Action were admitted into evidence in the application solely for the purpose of establishing the course of the proceedings and not for the truth of any allegation that they contained. However, allegations made by Paragon and Westpoint and admitted by Ms Hoon resolved the two matters earlier identified as being unclear from the contract documents. The admitted allegations indicated that Sunchance was a company associated with Westpoint and Paragon and GLT was a company controlled by Mr Huat (par 1.6.5 of the defence, par 2 of the reply; par 1.6.6 of the defence; par 2 of the reply). The pleadings also indicated that the Apartment 2C Contract replaced a contract made on 30 July 1999 for the sale and purchase of Apartment 2C (pars 1.1 and 1.2 of the defence; par 2 of the reply). I infer that the reference in the special conditions forming part of the Huntingdale Newsagency Contract to the 30 July 1999 contract was to an agreement that was for the sale and purchase of Apartment 2C that was replaced by the Apartment 2C Contract.
Accordingly, I accept that Westpoint and Paragon received the consideration agreed for the sale and purchase of Apartment 2C. That is consistent with Mr Huat's evidence and was not disputed by Paragon.
Mr Huat stated in his affidavit that he paid the stamp duty payable on the Apartment 2C Contract. That was also not disputed by Paragon and was consistent with what was stated by Ms Hoon in her statutory declaration made in support of the Caveat. The certificate of title confirmed that it was first issued on 23 May 2001 (attachment 'RM‑4' to Mr Morgan's First Affidavit).
It is trite that an equitable interest in land passes to the purchaser upon the signing of a valid and specifically enforceable contract for sale. The precise circumstances in which that interest will be recognised has been the subject of some argument. It will be necessary to briefly refer to that argument later in these reasons. However, there is no doubt that a purchaser's interest in land prior to the completion of a contract of sale may be protected by a caveat.
The Action
The pleadings attached to Mr Morgan's supplementary affidavit disclosed that Westpoint and Paragon admitted making the Apartment 2C Contract and alleged that prior to Sunchance and GLT entering into the Huntingdale Newsagency Contract, Mr Huat, as agent for GLT, made certain representations concerning the business that were false, alternatively were misleading or deceptive or were made negligently or in breach of an express warranty given by GLT (pars 1.6.9, 1.6.13, 1.6.14, 1.6.15 and 1.6.17 of the defence). It was further alleged that Westpoint and Paragon were entitled to terminate the Huntingdale Newsagency Contract and the Apartment 2C Contract; alternatively, that they were not obliged to settle on the Apartment 2C Contract until GLT had made good its representations concerning the Huntingdale Newsagency business. There was a general denial that Ms Hoon was entitled to specific performance of the Apartment 2C Contract and Westpoint and Paragon claimed orders for rescission of the contract in their third party proceedings.
In her reply, Ms Hoon denied the allegations of misrepresentation, alleged various matters to further deny that Westpoint and Paragon had relied on any representation made by GLT and pleaded waiver and an estoppel. No evidence was led in this application concerning the allegations of misrepresentation made by Westpoint, Paragon and Sunchance and the matters raised by Ms Hoon in her reply. Consequently, it is not possible to make any finding about those matters.
The attachments to Mr Morgan's Supplementary Affidavit indicated that the last pleading filed in the Action was an amended defence dated 24 November 2004.
Mr Morgan stated in his supplementary affidavit that in December 2008, a solicitor acting for the receivers for Paragon attended the hearing before Master Sanderson of an application by Ms Hoon to extend the time within which to appeal from a decision placing the Action on the inactive cases list. Mr Morgan produced an affidavit sworn on 27 October 2008 by Ms Hoon's solicitor, Mr Rikhraj, in support of that application (attachment 'RM‑13'). Mr Rikhraj stated in his affidavit that:
(a)The last interlocutory application in the Action had been an application for defendant's summary judgment that was heard and dismissed on 4 April 2004.
(b)A number of events had impacted on Ms Hoon's ability to progress her claim, including her relocation to Singapore and Mr Huat's ill‑health.
(c)Mr Huat had advised that Ms Hoon wished to proceed with her claim in the Action and that he would soon provide funds to enable counsel to be engaged.
(d)Westpoint and Paragon had been placed under external administration in January 2006.
(e)The Action had been entered into the inactive cases list at a case management hearing. Mr Rikhraj had attended the hearing and submitted that the Action should not be added to the list as it (or more accurately, Ms Hoon's claim in the Action) was subject to a stay under s 440D of the Corporations Act 2001.
The court file indicated that the notice of appeal filed against the decision to place the Action on the inactive cases list also relied on the stay under s 440D Corporations Act. The court file also indicated that on 18 December 2008 Master Sanderson allowed the appeal and directed that the order placing the Action on the inactive cases list be cancelled (the December 2008 Order). (The attachments to Mr Rikhraj's affidavit were not included in the copy of the affidavit produced as an annexure to Mr Morgan's Supplementary Affidavit. The affidavit referred to searches of the details of Westpoint and Paragon registered with the Australian Securities and Investment Commission that were attached. The searches attached to the original affidavit as filed suggest that administrators may not have been appointed under pt 5.3A of the Corporations Act. However, the searches indicate that provisional liquidators were appointed to Westpoint in April 2006, in which case, a stay on Ms Hoon's claim for specific performance would operate under s 471B. I will continue to refer a stay under s 440D given the state of the evidence in the application, the submissions made by Ms Hoon to the Master that resulted in the December 2008 Order being made and the way the parties conducted their respective cases in the application. The reasoning that follows remains unaffected by whether the operative stay was under s 471B, rather than s 440D, so that any application to proceed would have been made under the former rather than the latter section.)
The court may, of course, remove the stay that automatically operates on the appointment of an administrator to a corporation. There was no evidence in the application that Ms Hoon had applied for leave to proceed with her claim for specific performance under par (b) of s 440D(1) and no explanation was offered as to why an application had not been made. There was also no evidence that any step had been taken between late 2008 and when the Action was dismissed. Obviously, there must have been a period of considerable inactivity as the matter was placed on the inactive cases list and eventually dismissed for want of prosecution.
Mr Huat's affidavit
In addition to giving brief evidence of the circumstances surrounding the sale of the Huntingdale Newsagency, Mr Huat stated that the Caveat was lodged as settlement on the sale and purchase of Apartment 2C had not occurred for reasons that were unknown and 'despite our signing and executing all necessary paperwork'. He and his wife were then forced to return to Singapore in early 2003 as each of them had parents who were seriously ill. They were required to remain in Singapore for a lengthy time as a consequence. Subsequently, the Immigration Department refused to renew Mr Huat's business visa and he was still working towards meeting the conditions necessary to enable him to obtain a new visa to return to Perth 'if only to finish my claim' (par 16). He concluded his affidavit by stating that:
(a)He understood that the value of Apartment 2C and his business had 'appreciated considerably' (he did not disclose the source of his understanding) (par 17).
(b)Westpoint and Paragon had not offered to pay him 'any money for the payments made towards the price of the said land or the value of the business, and expect my wife and I to just walk away bearing all losses' (par 18).
(c)Ms Hoon and he were prepared to settle 'this action' on a 'mutually acceptable basis which must take into consideration' the 'price and interest' they would have received on the 'balance price of the business sold to the defendants', the 'refund of the price paid for [Apartment 2C]' and payment of their costs of 'this action' (par 19). He considered that Westpoint and Paragon would benefit 'unconscionably by making unearned profits at our account by wrongful retention of our moneys and cancellation of the contract for sale of land without any refund' (par 20).
The position of Paragon
The receivers appointed to Paragon are presently unable to complete a sale of Apartment 2C because of the Caveat. Mr Morgan stated in his supplementary affidavit that the receivers had also incurred maintenance and repair costs in respect of the apartment and had paid rates, taxes and strata management levies. The apartment was currently not rented as 'a commercial decision was made not to rent the apartment out by the Receivers because of the uncertainty surrounding these proceedings and the expectation they would be resolved and the apartment would be able to be sold' (par 29).
The parties' approach to the application
Paragon contended in its written submissions that the Caveat ought to be removed as Ms Hoon no longer possessed a caveatable interest or estate in Apartment 2C following the dismissal of the Action. That contention rested on two propositions.
First, a caveatable interest need not be a registrable interest so long as the interest is one in respect of which equity will grant specific relief against the land. Composite Buyers Ltd v Soong [1995] 38 NSWLR 286 was cited as authority for that proposition.
Second, a further action by a party to enforce a claim where a prior action concerning the same claim was dismissed for want of prosecution is an abuse of process; alternatively, once a claim is statute barred the claimant ceases to have an interest in land that is capable of supporting a caveat. Reference was made to Brocx v Hughes [2010] WASCA 57 and Verebes v Verebes (1995) 6 BPR 14,408.
Paragon's submissions assumed that the only action that could now be commenced by Ms Hoon to maintain an interest in Apartment 2C was for specific performance of the Apartment 2C Contract. Self‑evidently, that was the same claim as had been made in the Action. The submissions did not refer to the principles that ordinarily apply to an application under s 138C TLA and there was no submission concerning the balance of convenience.
In her written submissions, Ms Hoon disputed the contention that any fresh action would be time barred and/or an abuse of process. It was asserted, without reference to authority, that Ms Hoon's 'claim' was not time barred and that she was now in a position to commence a second action. It was further submitted that Westpoint and Paragon held the legal title to Apartment 2C as constructive trustee for Ms Hoon, alternatively that she possessed a claim for unjust enrichment.
At the hearing of its application, counsel for Paragon indicated that it could not be said that any further proceedings commenced by Ms Hoon would be definitely time barred and/or necessarily an abuse of process. That was because Ms Hoon had not identified the claim that she would make if she commenced another action. Consequently, he stressed that the Caveat should be removed as Ms Hoon had failed to establish her title to Apartment 2C in the considerable time since the Caveat was lodged and because of the prejudice that the delay had caused to Paragon and its receivers. Counsel for Ms Hoon countered by emphasising the prejudice that would be suffered if the Caveat was removed as the receivers proposed to dispose of the apartment.
The estate or interest claimed in the Caveat
It is necessary to identify more precisely the estate or interest claimed by Ms Hoon in the Caveat. The estate or interest claimed was 'an estate or interest in fee simple as purchaser'. It was said to arise by virtue of 'a contract for sale for land or strata title by offer and acceptance dated 20.10.00 made between the registered proprietor as vendor and the caveator as purchaser'. No submission was made by Paragon concerning the form of the Caveat nor was there any application by Ms Hoon to amend the Caveat in the light of any further action that she might commence.
It is clear from her statutory declaration that the estate or interest claimed by Ms Hoon in the Caveat was an equitable interest in Apartment 2C as the purchaser under a contract for the sale of land that remained to be completed, the interest being commensurate with the right to enforce the contract by having the legal title to Apartment 2C transferred to her. That is, in my view, the meaning to be ascribed to the claim of 'an estate or interest in fee simple as purchaser'. It is confirmed by Ms Hoon's conduct in subsequently commencing proceedings for specific performance.
It was contended in Ms Hoon's submissions in this application that the Apartment 2C Contract met all of the conditions required for a 'legally binding document enforceable by court action' (plaintiff's submissions opposing summons for order to remove caveat, par 5.1; emphasis added). Consequently, it was submitted, by reference to Hudson A, Equity & Trusts (3rd ed, 2003) 380 ‑ 381:
'Equity looks upon as done that which ought to have been done' such that a specifically enforceable obligation by contract to transfer rights in land is deemed in equity to effect an automatic transfer of those rights. The defendants as vendors therefore now hold the subject property on constructive trust for the plaintiff as purchaser.
The reference to a constructive trust made it clear that Ms Hoon was asserting a claim ultimately to the legal title to Apartment 2C (the subject matter of the trust). The passage cited also, in my view, correctly identified the essential question: whether the obligation imposed on Westpoint and Paragon by the Apartment 2C Contract to transfer legal title to the apartment to Ms Hoon was specifically enforceable.
The interest claimed and specific performance
In Composite Buyers, Hodgson J held that any equitable interest in land is sufficient to support a caveat even if the caveator does not have a registrable instrument and even though the caveator may not be entitled to an instrument that will lead to a recording in the register. His Honour considered that what was necessary for a caveatable interest was that:
there be an interest in respect of which equity will give specific relief against the land itself, whether this relief be by way of requiring the provision of a registrable instrument, or in some other way giving satisfaction of the interest claimed by the caveator out of the land itself, for example, by ordering the sale of the land and payment out of the proceeds of an amount in respect of which the caveator has a charge (288).
The point made by Hodgson J is an illustration of but wider than the proposition sought to be advanced by Paragon. His Honour's statement recognised the width of the interests that may be protected by a caveat; for example, that a purchaser's lien would be a caveatable interest.
As previously noted, there is some disagreement over the precise nature of the equitable interest of a purchaser under a contract for the sale of land: compare, for example, Professor Butt in Land Law (6th ed, 2010) 120 where he maintains that an equitable interest may be established through the grant of an equitable remedy other than specific performance and Meagher JA in Chief Commissioner of Stamp Duties v ISPT Pty Ltd (1998) 45 NSWLR 639, 654 where his Honour characterised as incorrect a proposition advanced in argument that 'if one were, actually or potentially, entitled in equity to any form of remedy in relation to an asset, one had, by virtue of that fact, an equitable interest in that asset' (and see also, Boge C, 'A buyer's "interest" in land under an uncompleted contract: A return to principle' (2008) 82 ALJ 266). However, that difference is not relevant to this matter nor, obviously, is the possibility that Ms Hoon may possess some claim in restitution or against the proceeds from any subsequent sale of Apartment 2C by the receivers for Paragon.
Accordingly, in my view Ms Hoon could only vindicate the estate or interest claimed in the Caveat by an action for specific performance. The Apartment 2C Contract was partly executed (Ms Hoon having provided the consideration for the sale) and so, the action would be for specific performance in the 'narrow sense'; that is, for the enforcement of an obligation owed by Westpoint and Paragon to provide Ms Hoon with a transfer of the title to Apartment 2C in registrable form. Her equitable estate or interest is commensurate with her ability to specifically enforce that obligation under the Apartment 2C Contract.
That view accords with the many authorities in which it is said that a purchaser's interest under a contract for the sale of land that has not been completed is commensurate with its right to obtain specific performance. For example, the majority in Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315 stated, '[i]n [Stern v McArthur (1988) 165 CLR 489] Gaudron J points out, consistently with authority in this Court, that the "interest" of the purchaser is commensurate with the availability of specific performance' [53]. The authorities referred to by Gaudron J in Stern included Bahr v Nicolay [No 2] (1988) 164 CLR 604 where at (610), Mason CJ and Dawson J said that, '[t]he existence and extent of the purchaser's equitable estate or interest in the property the subject of a contract of sale is commensurate with his ability to specifically enforce the contract'. It should also be noted that the majority in Tanwar Enterprises observed that analogies from trust drawn in cases such as Lysaght v Edwards (1876) 2 Ch D 499 were no longer accepted [53], although it would make no difference if Ms Hoon's interest was expressed to be as the beneficiary of a constructive trust. The source of the interest remains the Apartment 2C Contract and it stands or falls with the enforceability of the contract.
In Fairweather v Fairweather (1944) 69 CLR 121, Williams J observed that a contract that was at one stage specifically enforceable may, at a later stage, cease to be so, so that 'the trusteeship of the vendor, which exists only while the contract is specifically enforceable, then comes to an end' (154). His Honour relied on what was said by Lord Parker of Waddington delivering the judgment of the Privy Council in Central Trust and Safe Deposit Company v Snider [1916] AC 266 at 272: '[i]f for some reason equity would not enforce specific performance, or if the right to specific performance has been lost by the subsequent conduct of the party in whose favour the specific performance might originally have been granted, the vendor or covenantor either never was, or has ceased to be, a trustee in any sense at all'. Consequently, an interest that at one point in time was capable of supporting a caveat because it was enforceable in equity may subsequently be lost if the contract under which the interest arose is no longer enforceable.
The approach that has been taken to the application
I summarised my understanding of the principles applicable to an application under s 138C TLA in National Australia Bank v McCourt [2010] WASC 237. In my view, those principles should be applied in determining this application. They focus on whether the caveator has a prima facie case for final relief in respect of the estate or interest claimed and if so, whether the balance of convenience favours the retention of the caveat.
In this instance, the parties concentrated at the hearing of Paragon's application on the question of convenience. However, I consider that it is necessary to ascertain whether Ms Hoon has a prima facie case for final relief giving effect to the estate or interest claimed in the Caveat notwithstanding how the application was argued at the hearing. I did not understand counsel for Paragon to have accepted for the purpose of the application that Ms Hoon necessarily had an entitlement to the estate or interest claimed that satisfied the requirements of a prima facie case. His concession was more limited and he did not expressly abandon the arguments advanced in Paragon's written submissions. Ms Hoon joined in contesting those arguments in her written submissions, particularly by asserting that she had an enforceable claim to Apartment 2C that was not time barred and which she could prosecute in a fresh action.
The test to be applied in determining whether there is a prima facie case for final relief is that stated by the High Court in Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57. It does not mean that it is more probable than not that the plaintiff will prevail at a subsequent trial; rather, 'it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial' [65]. As the parties' written submissions recognized, the question is whether, assessed at a prima facie level, Ms Hoon could now commence and maintain a second action for specific performance having regard to the fate of the Action and the time that has elapsed since settlement of the Apartment 2C Contract was due.
Two matters should also be mentioned about the balance of convenience. First, as Owen J observed in Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42, 50, in many cases the removal of a caveat will have the practical effect of destroying the benefit of the proprietary interest that is claimed. However, the court retains a discretion as to whether it will require the withdrawal of a caveat on the grounds of convenience even where there is as an 'undisputable caveatable interest': Tadrous v Tadrous [2009] NSWSC 407 [6]; Guardian Loans Pty Ltd v FTFS Holdings Pty Ltd [2009] NSWSC 1163 [36] and see Navarac Pty Ltd v Moondancer Holdings Pty Ltd [2009] WASCA 95.
Second, it is necessary to say something about the purpose of a caveat having regard to the circumstances of this application.
The purpose of a caveat is generally identified by reference to what was said in J & H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546. At 552, Barwick CJ said:
[A caveat's] 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. If the caveator does not take proceedings in due time against the person who has lodged a dealing for registration, and the dealing is registered, awareness of the existence of the caveat, and through it, that an estate or interest is claimed by the caveator, will be irrelevant except possibly as an element in establishing fraud in the procurement of the registration.
Windeyer J quoted from the judgment of Harvey CJ in Thomson v Richardson (1928) 29 SR (NSW) 221, 223: '[t]he caveat is no blot on the title. It is simply a claim by somebody that he shall receive notice before any dealing with the land is carried through'. His Honour characterised the primary purpose of a caveat as warning the Registrar‑General of a claim: '[t]he word "caveat" has long been used in law to describe a notice given to an official not to take some step without giving the caveator an opportunity to oppose it' (558).
J & H Just (Holdings) was cited with approval by Mason CJ, Dawson and McHugh JJ in Leros Pty Ltd v Terara Pty Ltd (1992) 174 CLR 407, 419 (a case concerning the TLA). Their Honours said:
[T]he purpose of a caveat against dealings is to operate as an injunction to the Registrar‑General to prevent registration of dealings forbidden by the caveat until notice is given to the caveator so that he or she has an opportunity to oppose such registration.
In Genrich v Maitland Holdings Pty Ltd [1982] Qd R 58, 67 Andrews J observed that the purpose of a caveat was to 'preserve the status quo while questions as to title to land or an interest in land are investigated'. In Eng Mee Yong v Letchumanan [1980] AC 331, 335 Lord Diplock, delivering the judgment of the Privy Council said:
A caveat under the Torrens system has often been likened to a statutory injunction of an interlocutory nature restraining the caveatee from dealing with the land pending the determination by the court of the caveator's claim to the title to the land, in an ordinary action brought by the caveator against the caveatee for that 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 land or registrable interest in land that are alleged by the caveator but not yet approved.
This passage appeared after their Lordships had observed that a caveat was a 'very grave curtailment of the rights of the proprietor' and yet it might be lodged by a person whose claim to an estate or interest in the land was baseless and it was noted against the title as an administrative act.
The authorities to which reference has been made indicate that the purpose of a caveat is to facilitate vindication of a claimed estate or interest in land. It follows, in my view, that a caveat may be removed where the caveator fails to take reasonable steps to vindicate its claim in the face of an adverse or inconsistent assertion of title or proposed dealing. Further, I consider that delay in vindicating a claimed estate or interest may be relevant not merely where the caveator failed to respond to an adverse claim (as to which see, for example, McCourt v National Australia Bank Ltd [2010] WASC 121 [25] (Murphy J)) but also where the caveator failed to take reasonable and timely steps to establish the title to an estate or interest by an action for specific performance or similar proceedings.
In Varney v Anderson [1988] 1 NZLR 478, the appellant entered into a contract for the sale and purchase of land. Approximately one year later, he commenced proceedings for specific performance and several months later, he lodged a caveat over the land. Nine months later, a High Court judge ordered removal of the caveat, primarily on the ground that the appellant had been guilty of delay in prosecuting his claim for specific performance. On appeal, the Court of Appeal held that delay was a relevant factor to be weighed in the exercise of the court's discretion to remove the caveat. It was said that in the case of a caveat by the party claiming to be a purchaser, the court had always insisted on diligent prosecution of specific performance proceedings as the price for preserving the caveat. The court also observed that:
It is true that delay is not necessarily a bar to specific performance … We think it fallacious, however, to convert the possibility of obtaining a specific performance decree into an invariable and automatic ground for preserving a caveat, no matter what the delay. It is reasonable, especially where there has been culpable and serious delay, that a party who has delayed to the prejudice of the registered proprietor should ‑ at least may ‑ have to do so at the cost of the removal of the caveat. That may add a risk that a decree for specific performance will be ineffective, but it is a risk which the delaying caveator takes.
In the circumstances, the court concluded that the caveat ought not to have been removed as it was admitted that the caveator had an arguable case for beneficial ownership, the delays had not been great and had been explained to some extent and there was no claim or evidence of specific prejudice to the registered proprietor (481).
The reasoning of the New Zealand Court of Appeal is consistent with the observations of Anderson J in Custom Credit Corporation Ltd v Chellaston Pty Ltd (Unreported, WASC, Library No 93,0340, 10 June 1993). In that case, his Honour said:
A person cannot by alleging an interest in land and placing a caveat upon it forever prevent dealings in the land by persons claiming registered interests. They must get on and establish to the satisfaction of the courts in fully tried actions that they do have that interest. If this caveat had been lodged in 1990 when the default notice [under a mortgage] had first been served and the Court had at that time directed that the caveat remain in place until the defendants Chellaston and Tactical Holdings had had a reasonable opportunity to prove their interest and entitlement then I think the point would have long since passed between now and then when the Court would have in any event said, "Time enough" and ordered the caveat to be removed.
Those observations were cited with approval by Murphy J in McCourt v National Australia Bank. As I have endeavoured to explain, in my view, delay by a caveator in vindicating its claim to an estate or interest in land is relevant to the exercise of the court's discretion under s 138C TLA as it goes to the very purpose of the caveat provisions.
Nice questions of onus might arise in this application. I have not found it necessary to resolve those questions other than to indicate that I consider that Paragon, as applicant, bears the persuasive onus. However, the question of onus has had little impact on the reasoning; as will appear from the reasons that follow, the uncertainty surrounding some of the legal issues that have arisen has been more relevant to the determination of the application.
Dismissal for want of prosecution, abuse of process and limitation periods
Dismissal of an action for want of prosecution is not a decision on the merits and does not create a res judicata: Handley KR, (ed), Spencer Bower and Handley Res Judicata (4th ed, 2009) 2.13 and see Brocx [76] (Newnes JA). Further, the mere fact that a party commences a second action after a first action was dismissed for want of prosecution does not mean that the second action is an abuse: Brocx [19] (Buss JA); [80] (Newnes JA). However, a second action will generally constitute an abuse of process where the party's contumacious conduct was the cause of the first action being dismissed: Brocx [98] (Newnes JA).
Paragon did not identify in its written or oral submissions why a second action for specific performance would be an abuse of process. As Ms Hoon submitted, there was no evidence of the wilful disobedience to the court's orders or processes that marks a party's conduct as contumacious. I do not consider that it can be inferred that any subsequent action by Ms Hoon for specific performance would be struck out as an abuse on the basis that the Action was dismissed as a result of conduct on the part of Ms Hoon that could be characterised in that way.
There are other ways in which Paragon might have framed an argument concerning abuse of process and delay: see, for example, the discussion of abuse of process in McDowall v Reynolds [2006] QSC 414. However, I do consider that it is appropriate to consider the question beyond the reference to contumacious conduct in Brocx having regard to the nature of the application, the way in which it was argued at the hearing and the absence of any further reference to the relevant principles in the written submissions of Paragon.
Paragon also did not cite any authority in its written submissions on whether a second action by Ms Hoon to enforce the Apartment 2C Contract would be time barred. Verebes was not on point. It concerned a possible claim for breach of trust and significantly, s 36 of the Limitation Act 1969 (NSW) expressly provided that the Act applied to 'an action on a cause of action to enforce an equitable estate or interest in land in like manner as it applies to an action on a cause of action to recover land by virtue of a legal estate or interest in land'. Questions of construction that arise under the Limitation Act 1935 (WA) were avoided by that section.
The Court of Appeal considered those questions of construction in Duke v Royalstar Pty Ltd [2001] WASCA 273. The facts of that case were, in some respects, similar to this matter. The plaintiff claimed that it had exercised an option to acquire land by paying an option fee. The defendant denied the option agreement. The plaintiff commenced proceedings for specific performance of the alleged agreement for the sale of the land in September 1994. It took no step to prosecute the action after July 1995, apart from filing an affidavit in opposition to an application for summary judgment that did not proceed in 1997. The defendant applied for the action to be struck out for want of prosecution in early 2001 after the plaintiff had filed a notice of intention to proceed. The Master refused the application but an appeal from that decision was allowed.
The Court of Appeal held that:
(a)The best view appeared to be that there was no limitation period for an action for specific performance under the Limitation Act 1935. In particular, an action for specific performance is not an action to recover land within the meaning of s 4 of the Act nor was the plaintiff 'claiming any land … in equity' for the purpose of s 24. That was because it was not seeking to assert an equitable interest in the proceedings. Rather, it was seeking performance of a contract which, if performed, would give it legal title to the land [23].
(b)There were several possibilities if no provision of the Limitation Act applied: specific performance could not be granted because no claim at law could be maintained for damages for breach of contract (see R v McNeil (1922) 31 CLR 76); the Act would be applied by analogy, the analogy being with a claim on the alleged contract of sale (that is, a six year limitation period rather than the twelve year period for an action for recovery of land) or the defendant could rely on the doctrine of laches.
(c)In the case of the last of those alternatives:
(i)It will generally only be appropriate to consider questions of laches when all the material facts have been found [19].
(ii)However, that does not mean that laches cannot be raised by a defendant in the context of an application to strike out for want of prosecution [26]. In this case, the material facts were before the court [19].
(iii)Where a defendant can raise laches on an application for want of prosecution, the plaintiff will be required to establish a prima facie case that it can overcome the defence [26].
(d)The plaintiff had failed to establish a prima facie case that it can overcome the defence of laches ‑ there was no credible explanation for its delay; the delay and the timing of its attempt to revive the action suggested that it might have stood by while the value of the land diminished and then sought to take advantage of an increase in the value of the land. The doctrine of laches was intended to prevent that kind of conduct [27] and see Lamshed v Lamshed (1963) 109 CLR 440 and Boomalli Ltd v Hake [1985] WAR 7.
In deciding that the action should be struck out for want of prosecution, the Court of Appeal did not finally decide whether the first two alternatives to which it referred (R v McNeil and the statute of limitations by analogy) could also apply where it was alleged that there had been delay in commencing or pursuing an action for specific performance [34].
Several points arise out of the Court of Appeal's reasoning in Duke that bear on the question of whether Ms Hoon could commence and maintain a fresh action to enforce the interest claimed in the Caveat.
First, the learned authors of Meagher Gummow & Lehane's Equity: Doctrines and Remedies (4th ed, 2002) note authorities both for and against the proposition that specific performance is not available where a claim for damages for breach of contract is barred: see at [34‑070] and the reference to Fitzgerald v Masters (1956) 95 CLR 420, where specific performance was ordered after 26 years. In my view, the most that can be said about the proposition in the context of this application is that it is a defence that might be available to Westpoint and Paragon if a fresh action for specific performance was commenced by Ms Hoon. However, I do not consider that the proposition is sufficiently well established to support a conclusion, at a prima facie case level, that Ms Hoon could not obtain an order for specific performance in a fresh action.
As to the second alternative identified by the Court in Duke where the Limitation Act does not apply, Owen J in The Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [2008] WASC 239; (2008) 39 WAR 1 explained the difficulties and uncertainties in applying limitations legislation by analogy in equity: see at s 34.1.2.2. One reason why the analogy might not apply is that there is not an equivalent remedy at common law. However, it is suggested by Dr Spry that as proceedings for specific performance arise in equity's auxiliary jurisdiction, statutes of limitation should be applied subject to fraud and 'certain other matters that might render the setting up of the material statutory provision unconscionable' (Equitable Remedies (8th ed, 2010) 244). He criticised the decision of the English Court of Appeal in P & O Nedlloyd BV v Arab Metals Co (No 2) [2007] 1 WLR 2288 in which it was held that equity did not apply limitation statutes by analogy on the basis that the court did not give 'proper attention to the requirement that courts of equity should act "in obedience" and should not grant auxiliary relief where the legal rights in question have been barred by a statute of limitations' (245). Jones G and Goodhart W, Specific Performance (2nd ed, 1996), on the other hand, state that limitation statutes are not applied by analogy to a suit for specific performance, although they recognise that the expiry of a limitation period may be relevant to the exercise of the discretion to grant the remedy (109 ‑ 110). In particular, specific performance may be granted to a partly executed contract where the limitation period has expired (that is, where specific performance in the narrow sense is sought).
As with the possible application of R v McNeil, I do not consider that the law concerning the possible application of the Limitation Act by analogy to a claim for specific performance is sufficiently settled to permit a conclusion that Ms Hoon could not overcome a plea that a subsequent action would be time barred by analogy.
Consequently, the remaining the issue is whether Ms Hoon has a prima facie case for specific performance of the Apartment 2C Contract by a further action notwithstanding a possible plea of laches.
Ms Hoon's claim and the possibility of a defence of laches
It is necessary to note three further matters before expressing a conclusion on whether Ms Hoon could, prima facie, successfully maintain a fresh action to specifically enforce the Apartment 2C Contract notwithstanding the delay.
First, there is some difference in the authorities as to whether mere delay may be sufficient to sustain the defence of laches or whether the defendant must also establish acquiescence or prejudice: see Bell Group v Westpac s 34.1.3 and Equity: Doctrines and Remedies [36-065], where it is suggested that mere delay is insufficient. Again, it is appropriate to adopt the more strict view having regard to the nature of the application.
Second, certain aspects of Mr Huat's evidence concerning the explanation for the delay should be especially noted:
(a)As previously indicated, there was no explanation of why Ms Hoon had not applied for leave to proceed with her claim in the Action. Her solicitor was apparently aware of the power conferred by of s 440D(1) ‑ he raised s 440D in relation to the Action being entered onto the inactive case list and stated in his affidavit that Mr Huat had indicated that funds would shortly be provided to engage counsel, the inference being that an application for leave to proceed was anticipated.
(b)There was also no explanation as to why funds were not provided to enable the prosecution of the Action to continue following the December 2008 Order.
(c)The suggestion in Mr Huat's affidavit that it was necessary for he and Ms Hoon to return to Australia before Ms Hoon could pursue her claim to Apartment 2C should be treated with caution. Ms Hoon could have, of course, instructed her solicitor on the conduct of the Action following her return to Singapore. That was apparently understood by Mr Huat at the time that he instructed to Mr Rikhraj on the appeal from the decision to place the Action on the inactive cases list given the reference to further funds being provided.
(d)Further, it was stated in Ms Hoon's submissions that she was now in a position to prosecute a fresh action. That submission appears to be inconsistent with Mr Huat's evidence. In any event, there was no evidence that would support an inference that Ms Hoon was able to pursue a second action having regard to the history of the Action and in the absence of an adequate explanation for that history. She did not pursue her claim following the December 2008 Order and took no step since the Action was dismissed until Paragon brought its application.
Two further inferences can be drawn from the evidence. Mr Huat stated that he was persuaded to acquire Apartment 2C as part of the consideration for the Huntingdale Newsagency business. That supports an inference, consistent with all of the evidence, that Mr Huat was directly concerned in the acquisition of the apartment. Second, it may be inferred that as somebody who had operated a business in Perth, Mr Huat would have appreciated that rates, strata fees and other outgoings would have been payable on the apartment by Paragon during the period after the making of the Apartment 2C Contract. That is an inference that would arise, in any event, from his residence (and that of Ms Hoon) in Perth.
The requirement that more than mere delay must be shown for the defence of laches is consistent with the view expressed by Owen J in Bell at [9303] and [9307]. As his Honour observed, the delay must render it unjust in all the circumstances of the case for relief to be granted [9307]; the question is whether the balance of justice favours granting the remedy or withholding it.
As to acquiescence, Owen J stated at [9309]:
The word 'acquiescence' in the context of the laches defence refers to the imputed assent of a person who, knowing they have an available remedy, stands by and allows the continuance of the state of affairs flowing from violation of their rights: Fitzgerald v Masters (1956) 95 CLR 420 at 432 per Dixon CJ and Fullagar J. As McLure J said in Powell v Powell [2002] WASC 105 at [142]: '[A]cquiescence refers to the action of a plaintiff over a long period with full knowledge of his or her rights refraining from exercising the rights in circumstances where it can properly be inferred that they are abandoned'.
The authors of Meagher, Gummow & Lehane's Equity: Doctrines and Remedies combine laches and acquiescence in a single chapter and note that the term 'acquiescence' in the context of a laches defence may be used in a secondary sense to denote 'the plaintiff's behaviour in refraining from seeking redress once he knows his rights have been violated, were he ever so ignorant of their violation whilst it was in progress; and to denote his acceptance of the fact that his rights have been violated' [36‑010].
In Duke, the Court of Appeal held that there was delay coupled with prejudice (the prejudice to the defendant of the plaintiff allowing time to pass to see if the transaction was financially advantageous). There is no evidence that Ms Hoon deliberately delayed in pursuing her claim to see whether the value of Apartment 2C increased over time. The apartment would not generally be regarded as an asset of fluctuating value unlike a business (at least during the last decade). Further, the question of prejudice is complicated by the fact that Paragon sought by its counterclaim to, in effect, unwind the entire transaction with Mr Huat, Ms Hoon and GLT but apparently took no step to prosecute its claims in the Action after the application for defendant's summary judgment was dismissed in April 2004. No doubt that is partly explained by the fact that legal title to Apartment 2C was held jointly with Westpoint and by the appointment of a liquidator to Westpoint and receivers to Paragon. Nevertheless, Mr Morgan's evidence indicates that the receivers chose not to 'actively' participate in the Action or to, for example, rent the apartment.
The Court of Appeal in Duke referred to the decision of the High Court in Lamshed. In that case, Kitto J expressed the orthodox view that 'the special remedy of specific performance is available to those only who are prompt to claim it' ((452); but see also Meagher, Gummow & Lehane at [36‑030]). The degree of promptness required depended on the nature of the case in all of the circumstances but a matter that was important, where it existed, was that the defendant had denied that it was bound by the contract. His Honour continued:
The case in which that has occurred has been called 'the typical case' for refusing specific performance by reason of a delay of even a few months: Fitzgerald v Masters …
'In such cases (as those of purported recission for breach of contract or under a special condition as to title) the purchaser who wishes to attack the validity of the rescission must always come very promptly to a court of equity. It is natural and reasonable that this should be required of him, for the vendor is not to be placed indefinitely in the position of not knowing whether he can safely deal with the property in question on the footing that the contract has ceased to exist.'
… By parity of reasoning, a definite denial by one party that he has ever become bound by a contract of sale to which the other seeks to hold him places a clear obligation upon that other to sue promptly if he is to obtain from a court of equity a decree for specific performance. Equity will not allow the possibility of its making such a decree to be held unfairly long over the head of the party who denies the existence of the contract and asserts a right to deal with the property as his own.
The purchasers and the vendor were related in Lamshed. The vendor denied the contract of sale shortly after it was made and formally repudiated the contract. The purchasers commenced an action for specific performance but allowed the action to remain dormant for several years before setting it down for trial. The reason for the purchasers' delay was that they hoped that the vendor would eventually perform the contract without the matter going to trial since the vendor was the brother of one of the purchasers. Consequently, it could not be said that they had intended to abandon the contract or their action for specific performance. Nevertheless, Kitto J, with whom Windeyer J agreed, considered that by the time the purchasers set the action down for trial they had lost their right to specific performance. His Honour described the dilemma facing the vendor during the period that the proceedings lay dormant ‑ did he leave the matter alone hoping that the litigation would die or did he take some positive step to bring it to an end? That was a quandary in which the vendor was placed by the purchasers inaction and 'the decision under appeal [refusing the defence of laches] means that there is nothing inequitable in a plaintiff's leaving a defendant in such a state of uncertainty for months and years, and then, when it pleases him, asking the court to decide the issue he has allowed to become stale and grant the remedy of specific performance' (455).
In my view, those observations are apposite to this case. That is so even if it is accepted that Ms Hoon had a reasonable excuse for taking no steps to pursue her claim for specific performance between the time when she and her husband returned to Singapore and when the Action was first placed on the inactive cases list. The December 2008 Order was apparently made in anticipation of an application for leave to proceed notwithstanding the stay under s 440D of the Corporations Act and on evidence from Ms Hoon's solicitor that he was shortly to be provided with funds to enable counsel to be engaged. However, nothing further occurred and the Action was ultimately dismissed for want of prosecution after, again, being placed on the inactive cases list. In my view, Ms Hoon's conduct from at least the time when the December 2008 Order was made can arguably be characterised as acquiescence of a kind that would support a defence of laches when viewed in the context of what had occurred prior to that time. Arguably, her inaction denoted acceptance of the continuing claim by Westpoint and Paragon to title to Apartment 2C and an abandonment of any claim to specific performance of the Apartment 2C Contract by requiring legal title to the apartment to be transferred to her.
Several considerations that bear on that conclusion should be mentioned. First, although the receivers of Paragon have not sought to rent or sell the apartment, there is no evidence that they adopted a different position to that which had been taken by the company prior to their appointment ‑ that is, that Ms Hoon's title to Apartment 2C was denied.
Second, Ms Hoon's conduct of the Action had not presented Paragon with a dilemma of the kind identified by Kitto J in Lamshed, at least up to the time that a liquidator was appointed to Westpoint and receivers to Paragon; Westpoint and Paragon were pursuing their own claims in the Action to rescind all of the transactions involving Mr Huat, Ms Hoon and GLT. However, the position changed on the appointment of a liquidator and receivers, even more so on the making of the December 2008 Order. Ms Hoon's claim for specific performance was stayed under s 440D and the liquidator of Westpoint and the receivers of Paragon had taken no step for some considerable time to pursue their counterclaim. It was open to Ms Hoon to apply under s 440D for leave to continue her action at any time after the liquidator was appointed to Westpoint in 2006 but no application was made. In my view, the liquidator and receivers were entitled and waited to see what steps Ms Hoon would take to assert her title to Apartment 2C (subject to any other relevant obligations that were imposed by their appointments). In that sense, they were in a position similar to the vendor in Lamshed ‑ they were not obliged to take any step in the face of Ms Hoon's inaction and their failure to do so should not count against them in considering a possible defence of laches. That was especially so after the December 2008 Order.
Third, the uncertainty surrounding whether Ms Hoon continued to maintain a claim to ownership of Apartment 2C was apparently resolved when she took no further steps following the December 2008 Order so that the Action was dismissed for want of prosecution. Why should the orderly winding up of Westpoint and the receivership of Paragon now be disturbed by further uncertainty over that question?
Fourth, Ms Hoon has been content to take no effective steps to pursue her claim for specific performance since mid 2004, leaving Westpoint and Paragon responsible for paying all outgoings on Apartment 2C in the interim. It is to be inferred that she must have appreciated that expenses would be incurred by Westpoint and Paragon in connection with the apartment from the involvement of her husband and the inference drawn earlier in the reasons about his knowledge from operating a business in Perth.
Those matters further explain why it would not be unjust to allow a defence of laches to succeed even though the Apartment 2C Contract was partly executed. That fact might give rise to some form of money claim but that is not the issue in this application (I am not here to be taken as suggesting that such a claim is definitely available but simply acknowledging the possibility that was raised by Mr Huat in his affidavit and Ms Hoon in her written submissions).
It is necessary only to consider whether Ms Hoon has a sufficient prospect of obtaining final relief that would establish the estate or interest claimed in the Caveat to justify preserving the status quo by allowing the Caveat to remain on the title to Apartment 2C. In my view, her prospect of successfully maintaining a second action for specific performance in all of the circumstances is not sufficient to justify preservation of the Caveat.
Balance of convenience
I would have acceded to Paragon's application even if I had found that Ms Hoon had established a prima facie case that she possessed an estate or interest in Apartment 2C. The observations of Anderson J in Custom Credit v Chellaston apply with particular force in this matter. The Action was dismissed after being twice entered onto the inactive list. Ms Hoon took no step to pursue her claim for specific performance for more than four years prior to the December 2008 Order being made. She took no step once that order was pronounced with the result that the Action was dismissed. She has taken no step since the Action was dismissed other than to react to Paragon's application. Consequently, she has had almost ten years in which to vindicate her title to the Apartment 2C. It would, in my view, be contrary to the statutory purpose of a caveat to permit the Caveat to remain on the title to Apartment 2C in those circumstances even if some of the delay in around the mid 2000s can be explained by her personal position. The purpose of the Caveat has been exhausted as Ms Hoon has had ample opportunity to vindicate her claim to the equitable interest to which it referred.
There is a further matter that is relevant to the balance of convenience. The sense of Mr Huat's affidavit is that Ms Hoon no longer truly seeks to establish her legal title to Apartment 2C but rather, she and Mr Huat wish to be compensated for the consideration allegedly lost on the sale of the Huntingdale Newsagency business in the circumstances that have occurred. The purpose of a Caveat is to protect an estate or interest in land and not to better secure a claimant's position in relation to a money claim. I do not imply any collateral purpose to Ms Hoon's opposition to the removal of the Caveat. However, the focus of Mr Huat's evidence was on the financial consequences of what had occurred and his desire (and that of Ms Hoon) to achieve a settlement of 'this action' that would provide compensation for those consequences. As I have indicated, a money claim along the lines foreshadowed in Mr Huat's affidavit and Ms Hoon's written submissions may be available. However, such a claim could not support a caveat against the title to Apartment 2C.
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