Imagination Enterprises Pty Ltd v Widmer
[1999] WASC 269
IMAGINATION ENTERPRISES PTY LTD -v- WIDMER & ORS [1999] WASC 269
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASC 269 | |
| Case No: | CIV:1889/1999 | 30 SEPTEMBER 1999 | |
| Coram: | WHITE J | 21/12/99 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | The originating summons and the application to join a further plaintiff are dismissed with no order as to costs | ||
| PDF Version |
| Parties: | IMAGINATION ENTERPRISES PTY LTD WALTER WIDMER MARCUS JOHN AHERN THE REGISTRAR OF TITLES |
Catchwords: | Caveat Application for removal Turns on own facts |
Legislation: | Transfer of Land Act s 138 |
Case References: | Nil Baumgartner v Baumgartner (1987) 164 CLR 137 Muschinski v Dodds (1985) 160 CLR 583 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : IMAGINATION ENTERPRISES PTY LTD -v- WIDMER & ORS [1999] WASC 269 CORAM : WHITE J HEARD : 30 SEPTEMBER 1999 DELIVERED : 21 DECEMBER 1999 FILE NO/S : CIV 1889 of 1999 BETWEEN : IMAGINATION ENTERPRISES PTY LTD
- Plaintiff
AND
WALTER WIDMER
First Defendant
MARCUS JOHN AHERN
Second Defendant
THE REGISTRAR OF TITLES
Third Defendant
Catchwords:
Caveat - Application for removal - Turns on own facts
Legislation:
Transfer of Land Act s 138
Result:
The originating summons and the application to join a further plaintiff are dismissed with no order as to costs
(Page 2)
Representation:
Counsel:
Plaintiff : Mr C L Caine
First Defendant : Mr G A Rabe
Second Defendant : Mr G A Rabe
Third Defendant : No appearance
Solicitors:
Plaintiff : Corrin Caine
First Defendant : Ahern & Associates
Second Defendant : Ahern & Associates
Third Defendant : No appearance
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Baumgartner v Baumgartner (1987) 164 CLR 137
Muschinski v Dodds (1985) 160 CLR 583
(Page 3)
1 WHITE J: In this matter, the plaintiff, Imagination Enterprises Pty Ltd, filed a chamber summons seeking an order that Mr Michael Leslie Hopper ("Hopper") be joined as a plaintiff in this matter. The originating summons was taken out by Imagination Enterprises Pty Ltd seeking the removal of the caveats lodged by the defendant, Walter Widmer ("Widmer") and by his solicitor, Marcus John Ahern over lots 12 and 13 on plan 3267 being the whole of the land comprised in certificates of title volume 1248 folio 715 and volume 1671 folio 170 ("the Land"). The Land is situated in Hamersley Street, Cottesloe and at all material times it was registered in the name of Hopper as the Executor of the Will of Peter George Morrison Ryan ("the deceased"), who died on 25 April 1992.
2 It appears that, in or about March 1998, Hopper had executed a transfer of the Land in favour of Imagination Enterprises Pty Ltd as trustee of the Denmark Trust, in accordance with the terms of the deceased's Will. The transfer was not registered. Although Imagination Enterprises Pty Ltd, as transferee from the registered proprietor of the Land, was entitled to bring an application pursuant to s 138 of the Transfer of Land Act, the fact that it was a transferee was not pleaded at any material time, nor mentioned in the affidavit in support of the application. The caveats were withdrawn after the institution of the proceedings and, in the circumstances, counsel for Imagination Enterprises Pty Ltd conceded that no useful purpose could be served by the grant of the application to join Hopper as a party. Accordingly, that application is refused.
3 Counsel for Imagination Enterprises Pty Ltd accepted that the caveats have been withdrawn, but he maintained that Widmer should pay his client's costs and damages by reason of the lodging of the caveat by him. Counsel acknowledged that at no time, prior to the affidavit of Mr Hopper sworn on 28 September 1999, had Imagination Enterprises Pty Ltd alleged that it was the transferee pursuant to a transfer signed by Hopper. Nonetheless, counsel argued, Imagination Enterprises Pty Ltd was entitled to an order for the removal of the caveats at the date the originating summons was issued. There is no doubt that there was no reasonable cause or justification for the lodging of the caveats at any time and that fact is acknowledged by the withdrawal of the caveats.
4 The question for my decision now is as to whether, in the absence of a pleaded foundation for its claim, Imagination Enterprises Pty Ltd should nonetheless be entitled to costs and damages. Counsel did not cite any authority for or against the proposition that Imagination Enterprises Pty Ltd should have costs and damages.
(Page 4)
5 There is no indication that Imagination Enterprises Pty Ltd suffered any damages as the result of the lodging of the caveats, albeit counsel suggested that there was a delay which might have led to loss or damage. However, the position now is that the Land has in fact been sold and there is no suggestion that the price was adversely affected by the alleged delay. In any event, the failure by Imagination Enterprises Pty Ltd to establish the proper basis of its claim for the removal of the caveats may be thought to have contributed to any delay herein.
6 I am not prepared to direct that the caveators pay any damages to Imagination Enterprises Pty Ltd in the circumstances. What remains for decision it the question of the costs of the originating summons. As the caveats have been withdrawn, the originating summons may be dismissed. Counsel for Widmer submitted that the originating summons should be dismissed and that Imagination Enterprises Pty Ltd should pay Widmer's costs in connection with the proceedings, that is to say, that costs should follow the event. That submission overlooks the fact that the caveats were lodged without reasonable cause and that none of the costs in question would have been incurred had they not been lodged. Accordingly, I would not award costs to Widmer.
7 The question is whether Imagination Enterprises Pty Ltd should have the costs of the originating summons in the circumstance that Imagination Enterprises Pty Ltd never disclosed that it was the transferee of the Land from the registered proprietor and, accordingly, never made out a case entitling it to the relief sought, until Hopper's affidavit.
8 In my opinion, taking all circumstances into account, there should be no order as to the costs of the originating summons.
9 In the result, therefore, I make the following orders:
1. The application to join Hopper is dismissed, with no order as to costs.
2. The originating summons is dismissed, with no order as to costs.
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