JANESSA PTY LTD -v- CORZON PTYLTD & ANOR [1999] WASC 268

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASC 268
Case No:	CIV:2285/1999	Heard:	3 DECEMBER 1999
Coram:	WHEELER J	Delivered:	20/12/99
No of pages:	7	Judgment Part:	1 of 1
Result:	Application dismissed
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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

CITATION : JANESSA PTY LTD -v- CORZON PTYLTD & ANOR [1999] WASC 268 CORAM : WHEELER J HEARD : 3 DECEMBER 1999 DELIVERED : 20 DECEMBER 1999 FILE NO/S : CIV 2285 of 1999 BETWEEN : JANESSA PTY LTD

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

Grounds of appeal

[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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Details

Case: [1999] WASC 268
Decision Date

CaseChat Overview and Summary

JANESSA PTY LTD applied for an extension of a caveat lodged on property titled in the name of CORZON PTY LTD. The application was dismissed by the Supreme Court of Western Australia. The court was required to decide whether the plaintiff had established an arguable case of the existence of a caveatable interest. The court found that the plaintiff had failed to establish an arguable case as to the existence of a caveatable interest, and dismissed the application. The plaintiff's argument that a vendor's lien existed over the property was rejected, as the evidence provided was unsatisfactory and inconsistent with the proposition that payment of interest and contributions was intended to be part of the purchase price. The court held that the plaintiff had not discharged its onus of establishing a serious question to be tried.

Orders