Caveat Application under Transfer of Land Act 1893, s138C Caveatable interest Serious question to be tried Constructive Trust Financial and labour contributions in the course of a de facto relationship Balance of convenience Form of caveat defective Injunction granted and ancillary orders made under Transfer of Land Act 1893, s138C(2)(a)(iii) and s138C(2)(c)
CITATION : JANDRIC -v- JANDRIC & ANOR [1999] WASC 22 CORAM : COMMISSIONER BUSS QC HEARD : 19 MARCH 1999 DELIVERED : 18 MAY 1999 FILE NO/S : CIV 1797 of 1998 BETWEEN : GOJKO JANDRIC
Plaintiff
AND
ELENA JANDRIC First Defendant
REGISTRAR OF TITLES Second Defendant
Catchwords:
Caveat - Application under Transfer of Land Act 1893, s 138C - Caveatable interest - Serious question to be tried - Constructive Trust - Financial and labour contributions in the course of a de facto relationship - Balance of convenience - Form of caveat defective - Injunction granted and ancillary orders made under Transfer of Land Act 1893, s 138C(2)(a)(iii) and s 138C(2)(c)
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Jandric v Jandric [1999] WASC 22
Case
[1999] WASC 22
Decision Date
CaseChat Overview and Summary
In Jandric v Jandric, the Supreme Court of Western Australia considered whether the plaintiff, Gojko Jandric, could lodge a valid caveat against the defendant, Elena Jandric, to protect his alleged equitable interest in a property. The court found that the plaintiff's claim to an equitable interest in the property raised a serious question to be tried and that the balance of convenience favoured the plaintiff. However, the form of the plaintiff's caveat was defective as it did not specify the nature or extent of the interest claimed. The court granted an injunction restraining the defendant from dealing with the property unless the plaintiff's potential equitable interest was expressly taken into account. The court also ordered that the plaintiff promptly commence proceedings in the Supreme Court to determine the serious question to be tried.
The court held that the plaintiff's claim to an equitable interest in the property raised a serious question to be tried, as there was a substantial dispute between the parties in relation to the material facts. While the first defendant was able to produce numerous contemporaneous documents which suggested that her version of events may be more reliable, the court was not in a position, on the hearing of this originating summons, to make findings of fact. The court found that if the plaintiff's evidence was accepted at a trial, it would be unconscionable for the first defendant to deny that the plaintiff had acquired an equitable interest in her fee simple estate in the property.
The court also found that the balance of convenience favoured the plaintiff, as the evidence did not disclose that the first defendant would be prejudiced in any material respect by the maintenance of the existing caveat, the lodgment of a new caveat in substitution for the existing caveat, or the granting of an injunction to preserve the status quo until the serious question had been tried.
However, the court held that the plaintiff's caveat was defective in form, as it did not specify the nature or extent of the interest claimed. The court found that the appropriate orders were to grant an injunction until further order restraining the defendant from creating, disposing of, or dealing with any estate or interest in the property, unless the creation, disposition, or dealing was expressly subject to any proprietary estate or interest which the plaintiff may have in the property. The court also ordered that the plaintiff promptly commence proceedings in the Supreme Court by writ of summons for the purpose of determining the serious question to be tried.