JANESSA Pty Ltd v CORZON PtyLtd
[1999] WASC 268
JANESSA PTY LTD -v- CORZON PTYLTD & ANOR [1999] WASC 268
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASC 268 | |
| Case No: | CIV:2285/1999 | 3 DECEMBER 1999 | |
| Coram: | WHEELER J | 20/12/99 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | JANESSA PTY LTD CORZON PTYLTD REGISTRAR OF TITLES |
Catchwords: | Property Caveat Application for extension Existence of caveatable interest Evidence parol evidence rule admissibility No new point of principle |
Legislation: | Transfer of Land Act 1893 (WA), s 138C |
Case References: | Clifford v Turrell 1 Y & C 138 Custom Credit v Ravi Nominees (1992) 8 WAR 42 Eng Mee Yong v Letchumann [1980] AC 331 Frith v Frith [1906] AC 254 Hawke v Edwards (1947) 48 NSWLR 21 Cruz v Osborne [1999] WASC 8 Girando v Girando, unreported; SCt of WA; Library No 970444; 27 August 1997 Holland v Wiltshire (1954) 90 CLR 409 Kuper v Keywest Constructions Pty Ltd (1990) 3 WAR 419 Locke v Yogoat Pty Ltd (1992) 5 BPR 11,687 Ogle v Comboyuro Investments Pty Ltd (1976) 136 CLR 444 Permanent Trustee Australia Ltd v Shand (1992) 27 NSWLR 426 Porter v McDonald [1984] WAR 271 Reliance Finance Corporation Pty Ltd v Heid [1982] 1 NSWLR 466 Sims v Lowe [1988] 1 NZLR 656 Wossidlo [1934] SASR 268 Wossidlo v Catt (1934) 52 CLR 301 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
CORZON PTYLTD
First Defendant
REGISTRAR OF TITLES
Second Defendant
Catchwords:
Property - Caveat - Application for extension - Existence of caveatable interest
Evidence - parol evidence rule - admissibility - No new point of principle
Legislation:
Transfer of Land Act 1893 (WA), s 138C
Result:
Application dismissed
(Page 2)
Representation:
Counsel:
Plaintiff : Mr A P Rumsley
First Defendant : Mr R Guerrini
Second Defendant : No appearance
Solicitors:
Plaintiff : McKie & Associates
First Defendant : C E D'Angelo & Co
Second Defendant : No appearance
Case(s) referred to in judgment(s):
Clifford v Turrell 1 Y & C 138
Custom Credit v Ravi Nominees (1992) 8 WAR 42
Eng Mee Yong v Letchumann [1980] AC 331
Frith v Frith [1906] AC 254
Hawke v Edwards (1947) 48 NSWLR 21
Case(s) also cited:
Cruz v Osborne [1999] WASC 8
Girando v Girando, unreported; SCt of WA; Library No 970444; 27 August 1997
Holland v Wiltshire (1954) 90 CLR 409
Kuper v Keywest Constructions Pty Ltd (1990) 3 WAR 419
Locke v Yogoat Pty Ltd (1992) 5 BPR 11,687
Ogle v Comboyuro Investments Pty Ltd (1976) 136 CLR 444
Permanent Trustee Australia Ltd v Shand (1992) 27 NSWLR 426
Porter v McDonald [1984] WAR 271
Reliance Finance Corporation Pty Ltd v Heid [1982] 1 NSWLR 466
Sims v Lowe [1988] 1 NZLR 656
Wossidlo [1934] SASR 268
Wossidlo v Catt (1934) 52 CLR 301
(Page 3)
1 WHEELER J: This is an application by the plaintiff for the extension of a caveat pursuant to s 138C of the Transfer of Land Act 1893. On 27 January 1989 a company by the name of Marsher Pty Ltd ("Marsher") entered into a syndicate agreement with various other companies. Under that agreement Marsher was the manager and trustee of the syndicate, the objects of which were directed to dealing with real property. Part Lot 24, Talbot Road, Janebrook ("the Land") was part of the property held by Marsher on behalf of the syndicate. Esanda Finance Corporation ("Esanda") held a first registered mortgage in relation to all of the property held by Marsher.
2 On 27 February 1997 the syndicate agreed in writing to transfer the Land to the first defendant. A condition of this agreement was that the companies participating in the syndicate would pay all contributions and arrears owed by them to the syndicate up to 14 April 1997 or settlement, whichever was earlier. The plaintiff asserts that pursuant to this agreement, a contract for sale of land by offer and acceptance dated 24 February 1997 in relation to the Land, was entered into between Marsher and the first defendant. That contract was varied by an "acknowledgment agreement" dated 25 March 1997 between Marsher and the first defendant relating to descriptions of the lots and various land swapping arrangements.
3 This contract ("the first contract") specified the date of settlement as being 14 April 1997, and the purchase price as $1M. The first defendant was unable to settle on the settlement date, as it had been unable to obtain finance. What happened next is the subject of par 14 of the affidavit of Robert John Collins (director of the plaintiff) dated 18 November 1999.
4 Mr Collins deposes:
"At the request of the first defendant Marsher granted an extension of settlement date to the first defendant and the first defendant agreed to pay the outstanding contributions and arrears of the members and to pay the proportion of the interest payable by Marsher to Esanda attributed to the purchase price of the land, up until settlement of the contract."
5 It is said that this agreement was reached at a meeting on 14 April 1997 and partly evidenced in writing by hand-written note. The note has nothing to say about any outstanding contributions and arrears or interest, and is dated 15 April 1997.
(Page 4)
6 By deed of appointment of new trustee and variation of the property syndicate dated 5 June 1997, Marsher resigned as trustee and manager of the syndicate and was replaced by the plaintiff with effect from 5 June 1997. All rights and liabilities of Marsher were transferred to the plaintiff.
7 A further written contract for the sale of land by offer and acceptance ("the second contract") in respect of the Land was entered into by the plaintiff and first defendant on 7 July 1997. This contract also specifies the purchase price as $1M. Mr Collins deposes in respect of this contract in par 19 and par 20 of his affidavit of 18 November 1999:
"19 The contract was restated on 7 July 1997 partly in writing and partly orally.
…
20 The oral part of the restated contract was the agreement between myself on behalf of the plaintiff and Mr Campanella on behalf of the first defendant on 7 July 1997 at second floor 8 Parliament Place, West Perth, that payment of outstanding interest and payment of the outstanding contributions and arrears was to be made by the first defendant to the plaintiff as part of the purchase price."
8 Mr Collins further deposes in an affidavit of 2 December 1999 at par 7:
"The restated contract … was presented to me by Mr Campanella in the meeting deposed to in paragraph 20 of the affidavits [of 18 November]. Mr Campanella informed me that the restated contract was not materially different to the 27 February contract. He told me he wanted to restate the contract for stamp duty reasons. I signed the restated contract for the plaintiff on the understanding that payment of outstanding interest and payment of the outstanding contributions and arrears was to be made by the first defendant to the plaintiff, as part of the purchase price, as deposed to at paragraph 20 of the affidavit [of 18 November]."
9 On 8 July 1997 the Land was transferred from the plaintiff to the first defendant. Mr Collins deposes that he authorised the settlement even though the full purchase price had not been paid, as a result of a
(Page 5)
- "commercial decision" based on balancing certain competing commercial interests. It is not in dispute that the sum of $1M has been paid in respect of the purchase price. However, the plaintiff claims that the first defendant has not paid a sum of $6,410.10, being the balance of the payment due for the interest contributions, and $40,289.15 for the contributions and arrears. It has therefore lodged a caveat against the Land for the balance of the purchase price, pursuant to a claimed vendor's lien.
10 Section 138C of the Transfer of Land Act provides that the court may make an order extending the operation of a caveat if satisfied that the caveator's claim has or may have substance. Essentially, the test is whether the caveator can show an arguable case as to the existence of a caveatable interest. Once that is shown, it will only be in unusual circumstances that the balance of convenience favours its removal: Custom Credit v Ravi Nominees (1992) 8 WAR 42.
11 At the hearing of this matter, I was concerned that to admit the evidence which the plaintiff wished to give relating to the interest and contributions, was in effect to admit parol evidence which contradicted the provision of the offer and acceptance to the effect that the purchase price was to be $1M. Counsel for the plaintiff was unable to point me to any exception to the parol evidence rule pursuant to which such evidence would be admissible. However, since reserving my decision, my researches have revealed a number of cases dealing with this question and in particular the decision of the Privy Council in Frith v Frith [1906] AC 254. Citing the case of Clifford v Turrell 1 Y & C 138, the Privy Council specifically accepted as a correct statement of the law the view of the Vice Chancellor expressed in that earlier case that:
"The rule is, that where there is one consideration stated in the deed, you may prove any other consideration which existed, not in contradiction to the instrument; and it is not in contradiction to the instrument to prove a larger consideration than that which is stated." (at 259)
12 On its face, this decision appears to be authority for the proposition that it is never a contradiction of a written instrument, for the purposes of the parol evidence rule, to prove by oral evidence that the consideration is greater than that specified in the instrument. Whether such a sweeping interpretation of the exception is a correct one has been doubted: see, for example, the analysis in Greig and Davis "The Law of Contract" (1987) at pp 457 - 461. If it is to be so widely understood, the exception has been
(Page 6)
- referred to as "somewhat anomalous": Hawke v Edwards (1947) 48 NSWLR 21 at 24, per Jordan CJ. However, for the purposes of an application pursuant to s 138C of the Transfer of Land Act, it is sufficient, in my view, to reach the conclusion that there may well be an exception to the parol evidence rule which would permit the giving of the evidence by Mr Collins which I have quoted.
13 However, even having regard to the fact that the caveator has only in effect to establish a claim that has or may have substance, the evidence of Mr Collins is, I think, so unsatisfactory that it is not possible to say that the plaintiff has satisfied me even to that level.
14 It is well established that the court will not attempt to resolve conflicts of evidence on the affidavits, and for that reason I have not felt it helpful to turn to affidavits on behalf of the first defendant, which dispute aspects of the plaintiff's claims. However, in determining whether a caveator has discharged its onus of establishing a serious question to be tried, the court is not bound to accept uncritically as raising a dispute of fact every statement in an affidavit, "however equivocal, lacking in precision or inconsistent with undisputed contemporary documents": Eng Mee Yong v Letchumann [1980] AC 331 at 341.
15 If I turn first to the question of whether there was any agreement between the plaintiff and the first defendant at all in respect of interest and contributions, I note that in none of the relevant portions of Mr Collins' affidavits is there any evidence setting out material facts, as opposed to conclusions, concerning the agreement which was reached. In particular, apart from the evidence that Mr Campanella said that the restated contract "was not materially different to the 27 February contract" and that it was to be restated "for stamp duty reasons" there is absolutely no evidence which purports to set out the substance of any conversation. Nor is there any evidence relating to the circumstances in which the issue came to be discussed, who brought the subject up, or whether there was any discussion at the time indicating broadly what the amounts might be. Further, in relation to the question of the amounts outstanding, there is nothing in either of Mr Collins' affidavits from which one can discern the principle upon which the arrears of interest and the contributions were calculated, let alone any evidence of how the calculation was actually performed.
16 Most significantly, in my view, the affidavits of Mr Collins appear to be, in part at least, inconsistent with the proposition that payment of interest and contributions was intended to be part of the purchase price.
(Page 7)
- Rather, the conversation on 14 or 15 April, is deposed to in the 18 November affidavit in a manner which strongly suggests that the appropriate inference is that the agreement to pay contributions and arrears was consideration for Marsher's indulgence in granting an extension of settlement, rather than intended to be part of the purchase price of the Land. If, as Mr Collins deposes in both his affidavits, the second contract was merely the first contract "restated" and not intended to be materially different, then it would appear to follow that in that contract also the contributions and interest were not intended to be part of a purchase price, but were rather part of a collateral agreement between the parties. While Mr Collins deposes in his affidavit of 2 December that he signed the "restated" contract on the understanding that payment of outstanding contributions and arrears was to form part of the purchase price, there is no representation to that effect deposed to and there is no evidence, which would assist in understanding how it was that Mr Collins came to the conclusion that contributions and arrears were to form part of the purchase price. Still less is there evidence which would assist in ascertaining whether that could possibly have been the common intention of the parties.
17 Where material facts, which would presumably be within the plaintiff's knowledge, are not contained in affidavits in support of a caveat, but the court is asked to act on conclusions expressed in bold terms without any evidence which would assist in ascertaining how those conclusions were arrived at, it appears to me that the plaintiff has failed to establish any arguable question.
18 I should add for the sake of completeness that the plaintiff raised as an alternative an argument that Mr Collins when entering into the second contract was under a "misapprehension" as to what he was signing and that therefore some form of remedial constructive trust arises in relation to the property. The basis of this submission appears to be par 7 of the affidavit of 2 December. In my view, it is, for the reasons I have already given, simply incapable of supporting such an inference.
19 In my view the plaintiff has failed to demonstrate an arguable case as to the existence of a caveatable interest, and the application must be dismissed.
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