Jean Binning as Administratrix of the Estate of John Robert Cowan v Avsar - [2016] WASC 194

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: JEAN BINNING AS ADMINISTRATRIX OF THE ESTATE OF JOHN ROBERT COWAN -v- AVSAR [2016] WASC 194

CORAM: KENNETH MARTIN J

HEARD: 22 FEBRUARY 2016

DELIVERED : 30 JUNE 2016

FILE NO/S: CIV 1563 of 2014

BETWEEN: JEAN BINNING AS ADMINISTRATRIX OF THE ESTATE OF JOHN ROBERT COWAN
Plaintiff
AND
JENNIFER PATRICIA AVSAR
First Defendant
SEAN OMAR AVSAR
Second Defendant
SELIM AHMAD AVSAR
Third Defendant
YASMIN LEILA AVSAR
Fourth Defendant
REGISTRAR OF TITLES
Fifth Defendant

Catchwords:

Real property - Caveats - Statutory compensation claim - Absence of 'reasonable cause' in caveator - Damage - Distress - Inconvenience - Aggregation of distress claims against multiple caveators for withdrawn or lapsed caveats

Legislation:

Transfer of Land Act 1893 (WA), s 140

Result:

Compensation orders made

Category: B

Representation:

Counsel:

Plaintiff:     Ms C H Thompson
First Defendant              :     No appearance
Second Defendant         :     No appearance
Third Defendant            :     No appearance
Fourth Defendant           :     No appearance
Fifth Defendant              :     Submitting appearance

Solicitors:

Plaintiff:     Hartrey Legal
First Defendant              :     No appearance
Second Defendant         :     No appearance
Third Defendant            :     No appearance
Fourth Defendant           :     No appearance
Fifth Defendant              :     Submitting appearance

Case(s) referred to in judgment(s):

Avsar as administratrix of the estate of Antoinette Maria Cowan v Westland Healthcare Ltd [2007] WADC 27
Avsar as administratrix of the estate of Antoinette Maria Hayward (also known as Cowan) and Cowan [2012] FCWA 20
Avsar v Binning [2009] WASCA 219
Avsar v Binning [2014] WASC 188
Avsar v Cowan (dec'd) [2009] FCWA 147
Avsar v Public Trustee [2010] WASC 11
Avsar v Public Trustee [2011] WASCA 77
Bank of Western Australia v Connell (1996) 16 WAR 483
Brogue Tableau Pty Ltd v Binningup Nominees Pty Ltd [2007] WASCA 179; (2007) 35 WAR 27
Carroll v Azolia Pty Ltd [2000] WASC 95
John Street Marina Pty Ltd v Minister for Transport [2005] WASC 171
Stacey v Stacey [2010] WASC 85
The Public Trustee in and for the State of Western Australia as administrator of the estate of Yanya Bebich v Bebich [2013] WASC 456
Wallace v Hayes (Mont 12th Jud Dist Ct (Yellowstone County) DV 01-0882, 30 January 2013)
Westpoint Corporation Pty Ltd v Registrar of Titles [2005] WASC 273
KENNETH MARTIN J:

Introduction

I am dealing with the plaintiff's (Mrs Binning's) application for statutory compensation which is made pursuant to s 140 of the Transfer of Land Act 1893 (WA) (TLA) against each of the first, second, third and fourth defendants. The first defendant is Mrs Jennifer Avsar (Mrs Avsar). The second, third and fourth defendants are her adult children, who I will refer to respectively as Sean (second defendant), Selim (third defendant), and Yasmin (fourth defendant).
The statutory compensation claim of Mrs Binning is made in respect of four caveats that were lodged successively by:
•Mrs Avsar - caveat L396496;
•Selim - caveat M049607;
•Yasmin - caveat M154323; and
•Sean - caveat M611465.
The position of the fifth defendant (the Registrar of Titles) is effectively to enter a submitting appearance. By a communication to the Principal Registrar of this court (copy to the plaintiff's solicitors) of 19 February 2016, Landgate has advised, inter alia:
Based upon the information in the Orders the Registrar does not intend to enter an appearance in the Action and agrees to abide by any Orders made by the Court. The decision not to enter an appearance in the Action and to abide by any Orders made by the Court is based on the following assumptions.
2.1No allegations or claims are made against the Registrar.
2.2No Order as to costs is made against the Registrar.
One of the collateral aspects of this application is that I also need to finalise a residual situation around what are still continuing interlocutory injunctions I issued on 29 April 2014, which I have elsewhere and earlier granted against the first, second, third and fourth defendants, and additionally, against the Registrar of Titles as a fifth defendant in this action - in what were then urgent circumstances. I explain the background to those interlocutory injunctions in the course of these reasons. At the end, I conclude that these subsisting injunctions should be discharged after the publication of these reasons.

The substituted service of materials upon the first, second, third and fourth defendants and their non-participation in the proceedings to date

On 9 June 2014, the affidavit of Ms Cheryl Harrison was filed on behalf of Mrs Binning, in support of her application for orders for substituted service upon the defendants. The affidavit detailed Ms Harrison's numerous attempts to serve the defendants at various listed geographical addresses (on 18 separate documented occasions). Subsequently, I issued orders on 11 June 2014 permitting all materials the subject of Mrs Binning's application for relief pursuant to s 140 TLA, to be served under substituted service arrangements, effectively allowing electronic service. The substituted service orders provided for:
1.Sending PDF copies of the:
(a)Originating summons dated 28 April 2014;
(b)Plaintiff's chamber summons dated 28 April 2014;
(c)Affidavit of Kathleen Patricia Hill sworn 29 April 2014;
(d)Orders made by Justice Kenneth Martin on 29 April 2014;
(together, 'the Documents') by email to [redacted] be good and sufficient service of the Documents on the 1st defendant.
2.Sending:
(a)copies of the Documents by ordinary prepaid post to [redacted] Kardinya, WA 6163;
(b)PDF copies of the Documents by email to [redacted]
be good and sufficient service of the Documents on the 2nd and 4th defendants.
3.Sending:
(a) copies of the Documents by ordinary prepaid post to [redacted] Kardinya, WA 6163 and Shop 8 [redacted] Fremantle, WA 6160; and
(b)PDF copies of the Documents by email to [redacted]
be good and sufficient service of the Documents on the 3rd defendant.
Consequently, service of the defendants for the purposes of this application has proceeded on that basis - which I am satisfied is sufficient to draw the existence of these proceedings to the defendants' notice and give them an opportunity to participate and be heard if that is their wish.
The present application has proceeded effectively on an ex parte basis, due to the defendants' non-participation following service of materials upon them under such orders.
The last communication the court received from Mrs Avsar appears to have been by email (her listed address for electronic service) on 15 April 2014 in relation to the action CIV 1307 of 2013 in this court. The court registry also received some unsolicited email correspondence from a Mr A Avsar (Mr Avsar) under two emails of 3 September and 9 September 2015. Mr Avsar expressed himself as being Mrs Avsar's husband and the father of Sean, Selim and Yasmin. His correspondence appeared to acknowledge the commencement of this application by Mrs Binning and requested that it be 'struck out'. It has not been, as we will see.

The law concerning applications for statutory compensation pursuant to s 140 of the Transfer of Land Act: caveats lodged without 'reasonable cause'

Section 140 of the TLA states:
Any person lodging any caveat with the Registrar either against bringing land under this Act or otherwise without reasonable cause shall be liable to make to any person who may have sustained damage thereby such compensation as a judge on a summons in chambers shall deem just and order.
The law in this State concerning a claim for statutory compensation under s 140 TLA arising out of the lodging of a caveat by a caveator without 'reasonable cause', was considered by the Court of Appeal in its 2007 decision Brogue Tableau Pty Ltd v Binningup Nominees Pty Ltd [2007] WASCA 179; (2007) 35 WAR 27. Majority reasons were provided by Buss JA, with whom Wheeler JA agreed in relation to [103] - [118] of his Honour's reasons (see [1]). At [80] - [83] of his reasons Buss JA said there:
Section 140 refers to '[a]ny person lodging any caveat … without reasonable cause'. The subject of the provision is the caveator. The critical question, for the purposes of s 140, is whether the particular caveator acted without reasonable cause in lodging the caveat. That is, s 140 focuses upon whether the particular caveator, in lodging a caveat claiming the estate or interest in question or in lodging an absolute caveat in respect of the claimed estate or interest, acted without reasonable cause. Although the notion of 'reasonable cause' is an awkward expression (The State of New South Wales v Taylor (2001) 204 CLR 461 at [15] per Gleeson CJ, McHugh and Hayne JJ) the authorities on s 140 and comparable provisions in other jurisdictions have established that 'reasonable cause', in relation to a particular caveator, embodies subjective and objective elements. The subjective element is the existence of an honest belief that he or she had a caveatable interest or an interest which supported an absolute caveat. The objective element is the existence of reasonable grounds for the honest belief. The purpose of the particular caveator in lodging the caveat may be relevant in deciding whether it was lodged without reasonable cause. The decision in Taylor is distinguishable. It involved a different statutory context and the structure of the provision which included the expression 'reasonable cause' was materially different. See the joint judgment of Gleeson CJ, McHugh and Hayne JJ (at [1], [10] ‑ [11], [15]).
The foundation for the existence of 'reasonable cause', within s 140, is, therefore, not whether the caveator actually had a caveatable interest or an interest which supported an absolute caveat, but whether the caveator had an honest belief, based upon reasonable grounds, that he or she had such an interest: see Corwest Management (at 131, 134) per Burt CJ; (at 141 ‑ 142) per Brinsden J; Bedford Properties (at 108) per Wootten J; Kuper v Keywest Constructions Pty Ltd (1990) 3 WAR 419 (at 433 ‑ 434) per Malcolm CJ; Dykstra v Dykstra (1991) 22 NSWLR 556 (at 557 ‑ 558) per McLelland J; Baranyay (at 600) per Hayne J; Bolton (at 3) per Malcolm CJ; (at 10 ‑ 11) per Owen J (with whom Ipp J agreed); Beca Developments (at 469 ‑ 470) per Clarke JA; Truefilm (at [15] ‑ [16]) per Gzell J.
However, the existence of an honest belief, based upon reasonable grounds, that there was a caveatable interest or an interest which supported an absolute caveat, as the case may be, may not, of itself, be sufficient. As Wootten J observed in Bedford Properties (at 108):
'I think the foundation for reasonable cause must be, not the actual possession of a caveatable interest, but an honest belief based on reasonable grounds that the caveator has such an interest. That, of course, may not be enough. In Young v Rydalmere Credits Pty Ltd (1963) 80 WN (NSW) 1463 a caveator was held to have acted without reasonable cause when he lodged a caveat not for the protection of his interest but for an ulterior motive and without regard to its effect on transactions to which the caveator had agreed. Macfarlan J found that the caveator had been entitled to lodge the caveat, but he treated the question of whether or not he had the interest he claimed as irrelevant (at 1472, 1473): see also Deputy Commissioner of Taxation v Corwest Management Pty Ltd [1978] WAR 129, at 141, 142.'
Those observations were approved by Hayne J in Baranyay (at 600). Also see Edmonds (at [91]) per Phillips JA.
Accordingly, a caveator who had an honest belief, based upon reasonable grounds, as to the existence of a caveatable interest or an interest which supported an absolute caveat (but who did not actually have such an interest) may not act with reasonable cause if the caveat was lodged for an ulterior or improper purpose.
See also the decision of Henry J in the Queensland Supreme Court decision Brooks v Brooks [2015] 1 Qd R 105.
In short, as the above passage cited from Buss JA's reasons explains, there is a subjective as well as an objective element associated with an exercise of ascertaining whether a caveator has lodged their caveat without 'reasonable cause'. The subjective element concerns an ascertainment of an honest belief in the caveator as to their holding of a caveatable interest to support their caveat - even if they are ultimately proven wrong or mistaken as to the basis for that honest belief. But there is a significant objective element embedded in s 140, arising from the use of the word 'reasonable', in the term 'reasonable cause'.
For present circumstances, the task I must separately undertake as regards each of the four caveats complained of, which were lodged by the four different caveator defendants, is rendered less factually controversial than in Brogue Tableau. Here, there has been no countervailing affidavit, defensive or opposing evidentiary material put before me to support the conduct of any of these caveator defendants.

Mrs Binning's evidence relied upon for her applications

Mrs Binning's application for statutory compensation has proceeded upon the basis of some directions I made at previous directions hearings - for there to be a trial by affidavits. To that end, Mrs Binning by her counsel reads and relies upon four affidavits which I identify as follows:
(a)Mrs Binning's affidavit of 10 April 2014 sworn in this court in action CIV 1037 of 2013. This is a lengthy bound affidavit comprising 31 annexures. It presents in two parts. The second part of the bound affidavit internally includes the exhibits and an affidavit sworn by Mrs Binning's late brother, John Robert Cowan, which was sworn by him in Family Court of Western Australia proceedings PT 1162 of 1996 on 4 March 2005 - in Family Court format (of 140 pages).
Mrs Binning's affidavit as tendered in these proceedings, became exhibit A.
(b)A further affidavit sworn by Mrs Binning in the present proceedings, of 14 November 2015, including attachments JB1 through JB22. This became exhibit B.
(c)An affidavit by Mrs Binning's solicitor, Ms Kathleen Hill, sworn 18 November 2015 and containing attachments KH1 and KH2.
(d)A further affidavit by Ms Hill, essentially submitting four further attachments and exhibiting documents from Supreme Court action CIV 1037 of 2013. This affidavit became exhibit D.
There is a vast amount of factual information assembled within these unchallenged materials. These reasons will now attempt to summarise and catalogue relevant aspects of this material in a broadly chronological fashion.
That is the extent of the evidence before the court upon this application and, as I indicated, it stands as essentially uncontradicted.

'In the beginning … '

The present action was commenced by originating summons filed in somewhat urgent circumstances (as I will explain), on 29 April 2014. Mrs Binning is the sister of the late John Robert Cowan (Mr Cowan or John). John died on 9 March 2005. Mrs Binning was, essentially, the sole beneficiary of his estate under her late brother's will. Mr Cowan's last will had nominated the Public Trustee to be his executor. However, the Public Trustee, in due course, declined the appointment.
Eventually, some 3 1/2 years after his death, Mrs Binning was appointed Mr Cowan's administratrix - under a grant of letters of administration over her late brother's estate, on 23 October 2008. She brings this action in that capacity.
It is established on the evidence that between 30 March 1994 and 16 February 1996, John Cowan had been married to Mrs Avsar's mother, Antoinette Maria Cowan (formerly, Mrs Antoinette Haywood). For convenience and clarity, I will refer to this person as Antoinette, or as Mrs Avsar's mother. Mrs Avsar is the only child of Antoinette by a previous marriage. Antoinette died on 16 February 1996.
Prior to their marriage Antoinette and John had known each other for some years. They lived together from February 1981, over a 13-year period before they actually got married, in 1994.
Initially, John and Antoinette lived at John's house at Arundel Street, Fremantle. That property had been wholly owned by John as the registered proprietor.
At a point approximately two years into their relationship, John and Antoinette jointly purchased another property (for $20,413.75) in Fremantle. This was Unit 905, 23 Adelaide Street (sometimes referred to as Lot 111). This property was to become the flashpoint for much of the disputation involving the Avsar family which has eventuated.
The information is not that clear, but it seems that a significant component of the purchase price which was found for the acquisition of Unit 905 had been derived from the sale of John's Arundel Street property.
The duly purchased unit at Adelaide Street, Fremantle (the Fremantle Unit) became registered in both Mr Cowan and Antoinette's names, as joint tenants. That was the position from June 1983, and continuously thereafter, including over the period following John and Antoinette's marriage at March 1994 and then, until Antoinette died, in February 1996.
Under common law legal principles of survivorship applicable to the passing of real property, Antoinette's joint ownership interest in the Fremantle Unit passed to John Cowan upon Antoinette's death, on 16 February 1996. In other words, Antoinette's joint undivided interest in the Fremantle Unit passed by law to John Cowan automatically. That happened outside and notwithstanding what any will left by Antoinette said about her interest in that Unit.
However, in a nine-year period following Antoinette's death until John's own death in March 2005, Mr Cowan was, in effect, required to participate in a series of legal battles against Antoinette's daughter, Mrs Avsar. These battles played out across various curial jurisdictions, including in the Family Court of Western Australia, the District Court of Western Australia, in the Fremantle Magistrates Court, in the Guardianship and Administration Board of Western Australia, and elsewhere.
It is clear on the evidence that Mrs Avsar, by various strategies, was seeking to interrupt and inhibit Mr Cowan from ever becoming registered as the sole proprietor of the Fremantle Unit following the death of Antoinette. What unfolded may be seen as the resolute and determined efforts of Mrs Avsar over time to thwart a registration consequence for John under common law survivorship principles and then, to try to establish correlatively some countervailing claim by herself as holding some type of legal or beneficial interest in the Fremantle Unit. Such a claim by Mrs Avsar upon the Fremantle Unit was always untenable.
Mrs Avsar, since 1996, commenced numerous actions and then appeals, almost always acting in person as a self-represented litigant. The usual court filing fees to begin her in person legal proceedings were almost always waived on a basis of Mrs Avsar being exempt as a holder of a pensioner welfare card from the Commonwealth of Australia: see Supreme Court (Fees) Regulations 2002 (WA) reg 7(1d)(a).
Mrs Avsar in multiple actions she has commenced has invariably failed, invariably appealed, and then failed again. As will be seen, nothing done during John Cowan's life up to 2005 could ever inhibit Mrs Avsar against her determined efforts to gain some sort of toehold for herself in terms of a claimed proprietary interest of her own in the Fremantle Unit.

Chronology: Mrs Avsar and her multiple caveats up to March 2005

Mrs Avsar lodged her first caveat against the Fremantle Unit property on 2 January 1996: caveat G68354. This was in a period just before Antoinette died.

Sadly, Antoinette had been diagnosed with dementia (around November 1994). For a period she had been admitted to the Applecross Nursing Home. However, Antoinette was eventually removed from there by Mrs Avsar and taken to live with Mrs Avsar and her family where they then resided, in South Australia.
In that period, Mrs Avsar had managed to persuade the Guardianship Board of South Australia to have Antoinette declared a 'protected person' and for Mrs Avsar to be appointed as an administrator over her estate. It was in that capacity Mrs Avsar lodged her first caveat, G68354, on 2 January 1996, against the Fremantle Unit - as administrator for her then ill mother.
During that same period Mrs Avsar began her attempts to have the joint tenancy subsisting over the Fremantle Unit severed - by sending a form to Mr Cowan to sign to that end - seeking severance of the interests. John did not sign the form.
Mrs Avsar then filed an application, PT 1162 of 1996, in the Family Court of Western Australia against John Cowan, claiming for her mother's spousal maintenance and a property settlement. That action was begun on 14 February 1996, again purportedly acting as administrator for her mother. However, two days later Antoinette Haywood passed away.
That event saw Mrs Avsar file her second caveat against the Fremantle Unit on 11 April 1996: caveat G149109.
In the period between April 1996 and February 1999, John Cowan sought to have the registered title for the Fremantle Unit transferred to himself in accord with the orthodox consequences of an implementation of common law survivorship principles. But he was always inhibited and frustrated in achieving a registration as sole proprietor of the Fremantle Unit by Mrs Avsar's caveats.
In February 1999, Mr Cowan through his solicitors applied to Landgate on a basis of his seeking that 21 day notices be issued concerning Mrs Avsar's two caveats, thereby invoking the provisions of s 138B and s 138D of the Transfer of Land Act1893 (WA). The consequence of the ensuing issuance of such notices was that on 15 March 1999 Mrs Avsar's first caveat, G149109, lapsed. That happened automatically, by reason of her failing to demonstrate in the allowed time any sufficient interest in that property to support her first caveat.
Two days later, on 17 March 1999, Mrs Avsar's second caveat, G68354, lapsed by reason of another 21 day notice taking effect - in like unresponsive circumstances by Mrs Avsar as caveator.
Nevertheless, Mrs Avsar was not to be deterred. On 16 June 1999 she commenced proceedings in the Supreme Court of Western Australia, by action CIV 1653 of 1999, pursuing a claim against the Public Trustee under the Family Provision Act 1972 (WA). This action was eventually dismissed on 12 June 2000.
On 9 February 2000, with Mrs Avsar's two earlier caveats now lapsed, a formal application for the transfer of the title of Antoinette's former undivided one-half share joint tenancy interest to Mr Cowan by survivorship was lodged by Mr Cowan's solicitors, Leask & Co. However, a registration outcome for John to be shown as sole proprietor on the title to the Fremantle Unit was interrupted. That was again at the hand of Mrs Avsar, this time through steps taken by her in the Family Court of Western Australia.
Mrs Avsar applied for and was granted a limited authority to enable her to be substituted for her late mother, as the relevant applicant in Family Court action PT 1162 of 1996, brought against Mr Cowan. There then issued, at Mrs Avsar's behest, two interlocutory injunctions against him by the Family Court of Western Australia. The first injunction, issued on 15 March 2000, inhibited John Cowan from disposing of, charging or encumbering his interest in the Fremantle Unit. A second injunction, granted on 15 May 2000, restrained the Registrar of Titles from proceeding with any registration of Mr Cowan's survivorship application for the title of the Fremantle Unit.
In September 2003, Mrs Avsar moved to seek as against John orders out of the Guardianship and Administration Board of Western Australia. She sought to be appointed in Western Australia as administrator 'solely or jointly with another person', as the guardian of Mr Cowan. This flanking manoeuvre ultimately failed. It was dismissed as an abuse of process by the WA Guardianship Board on 29 June 2004 with, very exceptionally, an award of costs by the Board issued against Mrs Avsar upon that dismissal.
In October 2003, Mrs Avsar adopted different tactics - there was now a full frontal attack. On 26 October 2003, Mrs Avsar physically entered the Fremantle Unit, asserting rights to possession and now informing Mr Cowan that she had a right to stay there.
Mr Cowan does not appear to have been well at the time. He had undergone surgery in February 2001. Consequently, Mrs Avsar (and some of her other family members) gained a physical foothold at the Fremantle Unit by reason of that entry and subsequent occupancy. (Until about 1995 Mrs Avsar and her family appear to have been resident in Adelaide, South Australia.)
Having gained the strategic physical occupancy of the Fremantle Unit, on 7 November 2003 Mrs Avsar now wrote to Mr Cowan's lawyers, Leask & Co. She asserted her ownership and a right to remain in possession of the Fremantle Unit. Mrs Avsar then became busy running further civil actions. (Remembering that I am only providing a bare summary of events relevant to the impugned caveats.)
On 21 April 2004, Mrs Avsar commenced out of this court, in person, her action CIV 1530 of 2004. She was now seeking declaratory relief, to the effect that the four wills previously made by her late mother, Antoinette, prior to her death in February 1996, should all be declared invalid. Correlatively, Mrs Avsar sought that she be granted 'full administration orders and other orders for relief'. (Almost six years later, on 18 March 2010, that application was dismissed.)
On 11 May 2004 Mrs Avsar commenced proceedings out of the Fremantle Magistrates Court against Mr Cowan by Plaint No 000781 of 2004. Now she was claiming $24,700. Her claim was for rent (somehow) said to be 'owing to the deceased estate of Antoinette Maria Cowan (née Hayward)' by Mr Cowan.
How Mr Cowan might have become liable to his late wife's estate for rent, then, how Mrs Avsar might somehow become entitled to bring action for rent on behalf of her late mother's deceased estate without any authority or legal right to act in that capacity were all matters apparently overlooked at the time. Ultimately, they were fatal obstacles to that rent claim against John.
As seen, the Guardianship Board dismissed Mrs Avsar's application to be appointed Mr Cowan's administrator, on 29 June 2004. Nonetheless, Mrs Avsar, and it would seem one or other members of her family, remained in their possession of the Fremantle Unit. Mr Cowan still appears to have been unwell over this period (2004 - 2005), including requiring long periods of hospitalisation. He died on 9 March 2005.

Chronology continued: events subsequent to Mr Cowan's death in March 2005

As John and Antoinette Cowan were now both deceased as of March 2005, the jurisdiction of the Family Court of Western Australia in respect of matrimonial property under PT 1162 of 1996, had abated: see Avsar as administratrix of the estate of Antoinette Maria Hayward (also known as Cowan) and Cowan [2012] FCWA 20.
Mr Cowan had left a valid will dated 15 November 2001, appointing the Public Trustee as his executor. As mentioned, the Public Trustee declined that appointment. Hence, his sister, Mrs Binning, as principal beneficiary under her late brother's will, then applied via Supreme Court action CIV 1308 of 2007, seeking a grant of letters of administration over his estate. That should have been a straightforward, uncontroversial application. It was not, as things transpired. Mrs Avsar opposed Mrs Binning's appointment as administratrix of John's estate.
Mrs Avsar proceeded to lodge a caveat against any grant of probate to Mrs Binning. But that opposition ultimately failed (Templeman J delivering his decision ex tempore on 1 September 2008). Naturally, Mrs Avsar appealed that adverse result.
But Mrs Avsar was not deterred by that 'flesh wound': see Wallace v Hayes (Mont 12th Jud Dist Ct (Yellowstone County) DV 01‑0882, 30 January 2013).
Between 16 September 2008 and 21 February 2009 further applications were filed by Mrs Avsar in the Family Court of Western Australia. She was now seeking a declaration of nullity in respect of the 1994 marriage entered between John Cowan and her late mother. Most of the arguments were heard before the late Carolyn Martin J in the Family Court of Western Australia.
Underlying that application, Mrs Avsar argued that Antoinette, when a much younger woman, had previously been legally married in Goa, India, to a seafaring gentleman, a Mr Haywood. Mr Haywood had disappeared whilst at sea, some point relatively early in that brief marriage - that appears to have resulted in the birth of Mrs Avsar. There were some alleged issues raised over Antoinette's mental capacity to marry Mr Cowan in 1994. The Family Court activity consumed a great deal of time and expenditure. Ultimately, it all amounted to absolutely nothing.
In the meantime, Mrs Binning was finally granted letters of administration over her late brother's estate on 23 October 2008, via her action CIV 1308 of 2007.
Bizarrely, in December 2008, Mrs Avsar now applied to Landgate, seeking a transfer of the Fremantle Unit to herself, asserting a claim of adverse possession. A minimum of 12 years' continuous occupation is needed in order to maintain such a claim: see Limitation Act 2005 (WA) s 3(6) (and s 65(1) and, before that, the Limitation Act 1935 (WA)). Mrs Avsar, on her best case, had only been an inhabitant of the Fremantle Unit since her unilateral entry from 26 October 2003. Unsurprisingly, the application for adverse possession rights of the Fremantle Unit was dismissed on 30 November 2011.
My own introduction to Mrs Avsar as a self‑represented litigant was on 15 September 2009, when she applied as plaintiff in person in CIV 1530 of 2004, seeking a grant of letters of administration, over her late mother's estate. The Public Trustee appeared, expressing, in effect, a neutral position. Mrs Binning opposed that appointment.
Mrs Binning caused her then solicitors, Leask & Co, to appear as solicitors for the estate of Mr Cowan, as second defendant. Mrs Avsar was seeking to be appointed as administratrix of her mother's estate, contending that her late mother's four wills were, effectively, all nullities. Mrs Avsar was seeking to be appointed administratrix of her mother's estate, on the assumed basis of her mother dying, in effect, intestate: see Avsar v Public Trustee [2010] WASC 11 [3] and [5].
My determination on that application by Mrs Avsar was in part dependent on the awaited outcomes in Mrs Avsar's other pending proceedings in the Family Court of Western Australia, then awaiting decision.
On 27 October 2009, Carolyn Martin J in the Family Court issued reasons declaring that the 1994 marriage between Mr Cowan and Antoinette was valid: see Avsar v Cowan (dec'd) [2009] FCWA 147.
In Avsar v Public Trustee I had noted at [9] in my decision rejecting Mrs Avsar's administration application, that Carolyn Martin J's reasons at [181] had observed, in referring to Mrs Avsar's mother's capacity:
I am not satisfied her, probably, poor memory, the fact she obviously did not have high intelligence and was very poorly educated, meant that she did not have a general understanding of marriage (and divorce) and its consequences. She knew and accepted she was marrying the man she loved, depended on, and had lived with for many years. The fact that it is likely that Mr Cowan made the arrangements to enable the divorce to occur and, probably, for Mr and Mrs Cowan to marry, does not affect the validity of this marriage.
Antoinette had executed wills on 13 July 1994 (after her marriage to John), 3 February 1994 (in contemplation of marriage) and before that, on 23 October 1991. In all those testamentary instruments of Antoinette, she had devised all her estate to Mr Cowan, if he survived her (as he did).
As regards to Antoinette's joint property interest in the Fremantle Unit, the ascertained validity of Antoinette's last will of 13 July 1994 (leaving everything she possessed to Mr Cowan) was, in a wider perspective, irrelevant. Antoinette's joint property interest in the Fremantle Unit passed by common law survivorship principles which were applicable to a joint tenancy - to Mr Cowan. Antoinette's interest in the Fremantle Unit did not pass to John by way of a testamentary disposition under any of her wills.
Relevant to my decision concerning that application by Mrs Avsar had also been a pending appeal against the decision of Templeman J of 1 September 2008 in CIV 1308 of 2007. Reasons for decision were then delivered by the Court of Appeal, on 9 December 2009, unanimously dismissing Mrs Avsar's appeal against the grant of letters of administration to Mrs Binning over her late brother's estate: see Avsar v Binning [2009] WASCA 219.
I had received further submissions from the parties on 4 March 2010 and delivered my reasons on 18 March 2010: see Avsar v Public Trustee [2010] WASC 11. I then refused Mrs Avsar's application to be appointed as the administratrix of her late mother's estate.
As seen, those reasons issued in the wake of the decision of Carolyn Martin J in Avsar v Cowan (dec'd) [2009] FCWA 147 (albeit I was informed by Mrs Avsar that she was appealing that decision) and the decision of the Court of Appeal of this court in Avsar v Binning [2009] WASCA 219.
In [2010] WASC 11 at [42], I had said:
Nevertheless, I am not satisfied that it is appropriate for a court to approve an application for the grant of letters of administration, in circumstances where the putative administrator [ie, Mrs Avsar] seeks the position on the basis of an intestacy scenario - in the face of the significant evidence before me as to potentially valid testamentary instruments executed by Mrs Avsar's late mother in the period between 1987 and 1994.
The evidence before me at March 2010 also indicated the miniscule financial dimensions of Antoinette's estate (Antoinette, of course, then having been deceased since February 1996, a period of just over 14 years): see [38] of those reasons.

August 2010: caveat L396496 by Mrs Avsar

My 18 March 2010 decision refusing a grant of letters of administration to Mrs Avsar in respect of her late mother's estate is relevant to an expressed, but totally misconceived in law, basis for a subsequent caveat of Mrs Avsar. This was another caveat lodged by Mrs Avsar against the Fremantle Unit, on 10 August 2010 (ie, now the third caveat lodged by Mrs Avsar against the Fremantle Unit). This was caveat L396496, by which Mrs Avsar now asserted she held a legal or equitable interest in the Fremantle Unit, sufficient to support a lodgement of that new caveat. It was expressed to be on a basis of Mrs Avsar being the administratrix of her late mother's estate. But that was wholly fallacious. She was no such thing. This was the very application by Mrs Avsar that I refused under the 18 March 2010 reasons.
Of course, there followed an inevitable in person appeal by Mrs Avsar (as of right). The appeal was argued and determined before the Court of Appeal with Mrs Avsar representing herself. In due course, that appeal of Mrs Avsar failed: see the reasons of the Court of Appeal (Pullin JA and Hall J) published in Avsar v Public Trustee [2011] WASCA 77 on 4 April 2011.
Going back for the moment to 6 July 2010, Family Court of Western Australia proceedings PT 1162 of 1996 were formally dismissed that day. A consequence was that the two Family Court interlocutory injunctions that had issued over a decade earlier (as I mentioned, on 15 March and 15 May 2000) which had inhibited a transfer of the joint tenancy survivorship interest of Antoinette in the Fremantle Unit to John Cowan, were finally discharged. Those injunctions, in place for over a decade, had successfully inhibited any registration of the title of full ownership of the Unit by Mr Cowan during his lifetime.
The consequence then for Mrs Binning of the dismissal orders in the Family Court of 6 July 2010, was that, finally, the undivided one-half share joint tenancy interest of Antoinette, which had passed to her husband under survivorship principles in February 1996, was at last able to be registered upon the title for the Fremantle Unit. But Mr Cowan had now been dead for five years (since March 2005).
On 2 August 2010, Mrs Binning, as her brother's administratrix, finally became recorded as the sole registered proprietor of the Fremantle Unit (on the basis that a survivorship interest in the property of Antoinette had passed to John before his death and then, further, that John had left his valid will of 15 November 2001 pursuant to which all his estate, including all his interest in the Fremantle Unit, had passed to his sister, Mrs Binning).
So from August 2010 Mrs Binning was finally able to take steps to get vacant possession of the Fremantle Unit. But the battle was not over for Mrs Binning.
On 6 December 2010, she began an application FRE/PLND/1595/2010, seeking possession from Mrs Avsar of the Fremantle Unit at the Fremantle Magistrates Court. Naturally, Mrs Binning's application for vacant possession was resisted by Mrs Avsar.
On 30 November 2011, an order for possession of the Fremantle Unit was granted to Mrs Binning by the Fremantle Magistrates Court. But still Mrs Avsar would not budge, voluntarily. On 15 December 2011, the bailiff took forcible possession of the Fremantle Unit, finally delivering up vacant possession to Mrs Binning.
Obtaining vacant possession was necessary in a practical sense, in order for the Fremantle Unit to be viably marketed and sold off and its proceeds realised, as Mrs Binning always intended. However, there were some personal goods left behind by Mrs Avsar and her family in the retaking of possession process. That created another problem for Mrs Binning.
Mrs Avsar's abandoned personal goods needed to be the subject of further litigation and more expenditure for Mrs Binning. On 8 August 2012, orders were issued in the Magistrates Court permitting the disposal of the goods left behind by Mrs Avsar and her family at the Fremantle Unit.

Overview of caveats complained of on the s 140 TLA application for compensation

Eight days after Mrs Binning finally became registered as the proprietor of the Fremantle Unit (as administratrix of her late brother's estate) Mrs Avsar lodged, on 10 August 2010, her caveat L396496 ‑ which I mentioned earlier. This was all up the third caveat Mrs Avsar had caused to be lodged against the Fremantle Unit, with her previous caveats G149109 and G68354 lapsing, in mid-March 1999.
The present application of Mrs Binning, as might be remembered, seeks statutory compensation against the first, second, third and fourth defendants - in respect of what are a total of four caveats, all lodged against the Fremantle Unit, over a period between August 2010 and April 2014.
So, caveat L396496, lodged by Mrs Avsar on 10 August 2010, is relevantly the first of the caveats in respect of which a statutory claim for reasonable compensation made pursuant to s 140 TLA is pursued by Mrs Binning.
There are several important features to note at this point:
(a)No claim for compensation is brought in respect of the two earlier caveats lodged by Mrs Avsar (both of which lapsed in 1999). They are only background to the present application. But they show Mrs Avsar's familiarity with the processes surrounding the lodgement of caveats against land. Caveat L396496 is the foundation for the first relevant compensation claim.
(b)Mrs Binning only became registered at 2 August 2010 as the registered proprietor of the Fremantle Unit and, even then, only in her capacity as the appointed administratrix of the estate of her late brother.
(c) A proper or legitimate basis for caveat L396496, as asserted by Mrs Avsar, needs to show some sort legal or equitable interest held in land (the Fremantle Unit) that was sufficient to support an absolute caveat. Her claim to an interest was asserted on the basis of Mrs Avsar being a duly appointed administratrix of Antoinette's estate. Clearly, she never was. And she must have known that to be so. Mrs Avsar had applied, appearing in court in person, seeking to be afforded that very status in September 2009. Under my reasons in Avsar v Public Trustee [2010] WASC 11, published 18 March 2010, I had explicitly rejected Mrs Avsar's application to be appointed the administratrix of her late mother's estate (essentially, as Mrs Avsar proceeding on an erroneous basis, namely that her mother had died intestate, when that clearly was not so).
(d)A basis to establish a claim for statutory compensation under s 140 TLA, is for it to be shown that a caveat was lodged by the caveator, without 'reasonable cause'.
(e)The duration of caveat L396496 was over a two years and one month period, between 10 August 2010 and 17 September 2012, at which point this particular caveat had lapsed.
(f)Caveat L396496 lapsed as a consequence of an application made to Landgate by Mrs Binning, requesting that notice be issued to the caveator under s 138B of the Transfer of Land Act in respect of the caveat and, effectively, requiring Mrs Avsar as lodging caveator to justify the asserted claimed interest in land and to justify a continuance of the caveat. She did not do that.
(g)Mrs Avsar did not, within the 21 days allowed under s 138B and s 138D, TLA, respond to the notice issued by Landgate to her in respect of caveat L396496. Consequently, this caveat lapsed automatically after that time had run.

It will be necessary to say a little more about this caveat in a separate section of these reasons. Nevertheless, I do find at this stage that I am fully satisfied from all the evidence that caveat L396496:
(1)was lodged by Mrs Avsar;
(2)was lodged without any reasonable cause on her part; and
(3)only limited financial damage was sustained by Mrs Binning as the registered proprietor as a consequence of the lodgement of this caveat and its continuance over the period between 10 August 2010 to 17 September 2012.
Mrs Binning claims as compensation from Mrs Avsar in respect of this caveat the following amounts as statutory compensation under s 140 TLA:
(i)$342.00, being fees paid to Landgate to issue the s 138B TLA 21 day notice to the caveator;
(ii)$2,815.53, being moneys paid by Mrs Binning to Westpac;
(iii)$7,989.56, being strata fees for the Fremantle Unit incurred and paid by Mrs Binning in the two years and one month period, between 10 August 2010 and 17 September 2012; and
(iv)$2,323.55 in rates paid for the Fremantle Unit during that period.
The underlying premise of Mrs Binning's claim for compensation under s 140 TLA is that the Fremantle Unit would otherwise have earlier been sold, therefore, the ongoing strata fees and local authority rates would not then have been payable, had it not, been for the subsistence of Mrs Avsar's caveat L396496 interrupting an earlier sale.
In respect of a claim for moneys from Westpac as interest paid on a loan taken out by Mrs Binning to meet legal costs, the nature of that claim requires further explanation. In the end, I cannot accept it. I return to that issue in due course.
For the moment, I will resume the chronological narrative concerning events around the Fremantle Unit.

Chronology: after 17 September 2012

As mentioned, Mrs Avsar's caveat L396496 lapsed on 17 September 2012, following her failure to respond to the Registrar of Titles' s 138B 21 day notice to her. But that very same day, another caveat, M049607, was lodged ‑ now by Mrs Avsar's son, Selim Avsar, who is the third defendant.
Statutory compensation under s 140 TLA is also sought by Mrs Binning against Selim in respect of his absolute caveat, which was lodged against the Fremantle Unit, and remained for an almost four-month period, from 17 September 2012 to 10 January 2013.
On 29 October 2012, Mrs Binning signed an agency agreement with agents Dethridge Groves to facilitate the sale of the Fremantle Unit and for the proceeds to be realised.
On 20 November 2012, Mrs Binning again requested Landgate to issue a s 138B notice - this time in respect of Selim's caveat.
There was late resistance to this caveat lapsing under the force of s 138B(1). On Christmas Eve 2012, Mrs Avsar attempted to commence her action CIV 1037 of 2013 in this Court. She was seeking permission of the court to lodge a further caveat, as well as to obtain an interlocutory injunction restraining Mrs Binning from dealing with the Fremantle Unit. Some papers were attempted to be lodged at the Court dated 24 December 2012 on Mrs Avsar's behalf. But they could not be received. (This was, I assume, because by then the court had been closed for the summer non-sitting period until the new year.)
Mrs Avsar's papers were eventually received and stamped so as to commence CIV 1037 of 2013, on 4 January 2013. However, on 10 January 2013 Selim's caveat M049607 had lapsed automatically by reason of his failure to respond within 21 days to the registrar's s 138B notice and to support a claimed interest in the Fremantle Unit under his caveat.
My reasons published as Avsar v Binning [2014] WASC 188, heard 14 April 2014 (reasons revised and published on 3 June 2014) within Mrs Avsar's action CIV 1037 of 2013, address events of early 2013 in respect of: Mrs Avsar's lapsed caveat L396496 (as at 17 September 2012); and then Selim's caveat of 17 September 2012, caveat M049607 (which lapsed automatically on 10 January 2013). They also address a further caveat that was next lodged by Mrs Avsar's daughter, Yasmin Avsar, the fourth defendant, on 10 January 2013 (the third in the series of four caveats in respect of which Mrs Binning now seeks statutory compensation).
Civil action CIV 1037 commenced by Mrs Avsar by originating summons of 4 January 2013 was supported by an affidavit sworn by Yasmin Avsar. Yasmin deposed that her mother was overseas and said it had not been possible for Mrs Avsar to apply to extend her own caveat L396496 within the prescribed 21 day period.
Hence, in January 2013, Yasmin was deposing towards some circumstances pursuant to which she had then sought leave of the court on behalf of her mother to file a subsequent caveat. This was in circumstances where s 138D(1)(b) and (e) TLA prohibits a lodging of a subsequent caveat, after an earlier caveat has lapsed under a s 138B(1) notice without leave of the court first being obtained.
So Selim's caveat of 17 September 2012 (the second in the relevant sequence) had been lodged, on a basis of what I would assess as being lodged as something of a family fall‑back position, given an automatic lapsing of his mother's caveat. But Selim had also then received a s 138B(1) notice from the registrar on 20 December 2012, requiring him, in effect, to obtain an order of the Supreme Court by 10 January 2013, otherwise his caveat would automatically lapse. He did not act in time and there was an automatic lapse. But the same modus operandi was followed for Yasmin's caveat, issued the same day Selim's caveat automatically lapsed.
In CIV 1037 of 2013 there was an application to amend Mrs Avsar's originating summons, on 14 January 2013, with Mrs Avsar seeking, in the alternative, an interlocutory injunction to restrain Mrs Binning from disposing of, charging or encumbering the Fremantle Unit (albeit at that time no undertaking as to damages was provided by Mrs Avsar and, further, that Selim, although an adult, was not made a party to the proceedings: see [12] of my reasons in Avsar v Binning [2014] WASC 188).
That matter came before me on 15 January 2013, and I allowed leave to Mrs Avsar to proceed on her amended originating summons. But I refused her leave to file any further caveats under s 138D(1)(e) TLA. I also refused her requested interlocutory injunction against Mrs Binning at that time. It is clear to me that Mrs Avsar and Yasmin both held an appreciation that once a caveat had lapsed under the force of a s 138B(1) registrar's 21 day notice, that further caveats by that same person asserting the same interest in land as before were not allowed without leave of the court. Hence, their resort to the device of using another family member as a new caveator was used to avoid a rejection at lodgement by Landgate of a second caveat infringing s 138D.
At 15 January 2013, of course, Selim's caveat had lapsed, albeit then caveat M154323 had been lodged - on 10 January 2013.
I had observed at [16] of my reasons that Yasmin's caveat had been lodged the very day Selim's caveat had been due to lapse under the registrar's s 138B(1) notice and that Yasmin seemed to be claiming a personal proprietary interest in the Fremantle Unit as an asserted 'equitable and beneficial owner'. I observed at [20] of those reasons that Yasmin's caveat M154323 of 10 January 2013 appeared to deliver an effect of 'thwarting any dealings in respect of [the Fremantle Unit]' in 2013. I also said:
It appears to have indirectly accomplished that objective [20].
It is apparent then for action CIV 1037 of 2013, that albeit on 15 January 2013, I refused Mrs Avsar's personal application for an interlocutory injunction and declined to grant her leave under s 138D(1)(e) TLA to file any further caveats, that Yasmin's caveat had earlier been lodged on 10 January 2013.
After 15 January 2013, Mrs Avsar's action CIV 1037 of 2013 became, essentially, inactive. But it was revived at Mrs Avsar's behest just over 14 months later, in March 2014.
On 24 March 2014, Mrs Avsar issued her chamber summons in CIV 1037 of 2013. She was again seeking an interlocutory injunction against Mrs Binning, complaining:
The defendant is attempting to dispose of the property without court orders.
See [24] of my reasons in Avsar v Binning [2014] WASC 188.
Mrs Avsar's chamber summons application came before Pritchard J on 3 April 2014. Programming directions were then issued, upon a basis of an interim undertaking by Mrs Binning to the effect that she would not proceed to settle on any sale of the Fremantle Unit: see [25] of the reasons in Avsar v Binning [2014] WASC 188.
The renewed application for injunctive relief by Mrs Avsar then returned to me on 14 April 2014 for the substantive arguments upon that interlocutory injunction application which, in the end, I refused.
I then noted (see [30]) that on 11 April 2014 Yasmin's caveat had lapsed (following Yasmin's failure to respond in time to yet another registrar's s 138B(1) notice issued at Mrs Binning's instigation in respect of that caveat M154323).
At [27] to [33], I said, and it is convenient to repeat:
[27]There is a lengthy collection of historical materials assembled under Mrs Binning's affidavit of 10 April 2014. It runs to two volumes of material and 31 annexures. That material discloses the veritable 'tsunami' of litigation across the various courts of Western Australian [sic] which Mrs Avsar has initiated either herself or in the asserted capacity of administratrix of her late mother's estate, and generally as a litigant in person.
[28]The sad saga of litigation extends across the Family Court of Western Australia, the District Court, in the Fremantle Magistrates Court and then on appeals from these courts.
[29]That material provides historical insights to this 2014 application. Clearly, this action was resuscitated by the looming effects of another Registrar's notice issued in 2014 pursuant to s 138B of the TLA, which would bring to an end the third caveat by Yasmin Avsar.
[30]On 11 April 2014 Yasmin's caveat lapsed, albeit the defendant has not verified if there is now wholly clear title (ts 72) for Lot 111.
[31]I am very concerned as to what has occurred in respect of the filings of three (all now lapsed) caveats by different members of the Avsar family. The various caveats have delivered delays in dealings with Lot 111.
[32]On the face of it, it is clear that s 138D(1) of the TLA says that where a Registrar's notice has not been interrupted and the caveat lapsed under s 138B(2), a caveator cannot lodge with the Registrar any further s 138A caveat in respect of the same land, unless (relevantly) by s 138D(1)(e):
(e)the Supreme Court has made an order giving leave for the lodgement of the further caveat, and a copy of that order has been served on the Registrar.
[33]However, I assess no legitimate basis or justification for the third caveat, by which Yasmin asserted her so-called equitable interest in Lot 111. I assess that caveat as lodged to get around a failure of her mother in January 2013 to obtain leave to lodge or renew earlier caveats which her mother, Mrs Avsar, and her brother, Selim Avsar, had successively lodged against Lot 111. On 15 January 2013 I declined to allow those caveats to be renewed, or allow any fresh caveat by Mrs Avsar asserting the same interest to be lodged.
In the 2014 reasons, I added:
[43]The underlying merits towards the identification of some legal or equitable interest in Lot 111 by Mrs Avsar appear to have been overwhelmed by the tsunami of litigation in the Family Court and the District Court and other places. But none has ever been successfully resolved upon the merits, as I see it, in Mrs Avsar's favour. Yet she asserts defiantly that she holds some interest in Lot 111 and should be heard once again.
…
[46]Mrs Binning would appear to have been held out for many years by Mrs Avsar's plethora of litigation from realising any benefit in Lot 111.
[47]There is now evidence that there is a willing purchaser who has agreed to purchase Lot 111, subject to receiving a clean title at settlement. There appears to have been previous interest from another purchaser, but who was effectively scared off, not surprisingly, by the caveats I have mentioned. All three caveats have now suffered their lapse, after Registrar's notices under the TLA.
[48]There presents now, it seems, another opportunity for Lot 111 to be disposed of by Mrs Binning to a fresh prospective purchaser.
[49]I can see no basis, weighing the balance of convenience, to interrupt any potential sale, particularly where there is an aging vendor already exposed to much meritless and expensive litigation for so long - in respect of many actions no doubt accruing ongoing legal costs over time - only part of which costs have been met by Mrs Avsar.
As regards Yasmin's caveat, which lapsed on 11 April 2014 after being noted on the title of the Fremantle Unit for just on 15 months (between January 2013 to April 2014), I referred to what had (then) been an incomplete picture presented back in January 2013, as I was first told in bare terms of Yasmin's caveat. I then explained the position as of April 2014, at [55] - [56]:
[55]Full details now having been provided of this third caveat lodged by Yasmin, it is apparent that nothing has emerged to support any arguable basis for an interest in Lot 111 by Yasmin herself. The broad assertion, seen both on Yasmin's caveat and her accompanying statutory declaration as to her holding some equitable interest or beneficial interest in Lot 111, effectively contained nothing of any substance - although it was enough, apparently, for Landgate to ultimately accept Yasmin's caveat in January 2013. It has now lapsed in 2014.
[56]My scrutiny today of Yasmin's documentation concerning her caveat shows it as having been filed effectively as a mechanism to get around the s 138D(1) difficulty faced by Mrs Avsar in terms of her being then inhibited from filing any further caveats.
Accordingly, on 14 April 2014, I dismissed Mrs Avsar's application for an interlocutory injunction restraining Mrs Binning's efforts to dispose of the Fremantle Unit. I then went further and dismissed Mrs Avsar's whole action CIV 1037 of 2013, as an abuse of the process of the court.
Two days later, what is relevantly the fourth caveat complained about by Mrs Binning, namely caveat M611465, came to be lodged on 16 April 2014.
This fourth and last caveat that is complained of by Mrs Binning was lodged on its face by yet another member of the Avsar family, Sean Omar Avsar. Sean is another of Mrs Avsar's sons and the second named defendant to this action.
The lodgement of that caveat M611465 by Sean finally led Mrs Binning as a plaintiff to urgently commence this present action, CIV 1563 of 2014 by originating summons of 29 April 2014.
Mrs Binning now sought various relief, including an urgent interlocutory injunction restraining Mrs Avsar, Sean, Selim and Yasmin (as the first through fourth defendants respectively) against the lodging or causing to be lodged with the Registrar of Titles (the fifth defendant) of any (further) caveat or other encumbrance against the Fremantle Unit.
Mrs Binning now also sought an interlocutory injunction restraining the Registrar of Titles from noting or registering Sean Avsar's caveat, M611465.
Mrs Binning's application now came before me urgently, on the same day her originating summons was filed - ie, on 29 April 2014, for an urgent hearing and, effectively, on an ex parte basis.
Mrs Avsar did not attend that day. But I noted (see ts 2 - 3) she had sent an email to the Associate to the Chief Justice advising, somewhat ironically in the circumstances:
I am not even aware of why I am being harassed or pursued in this manner that is obviously now getting out of hand.
That day, I had noted in my discourse with counsel for Mrs Binning, as regards Sean's caveat, that:
The caveat identifies the registered proprietor correctly of Lot 111 as being the plaintiff, Jean Binning, as administrator of the estate of the late John Robert Cowan. The interest or estate claimed on the face of the caveat is as a [sic] 'equitable and beneficial owner' and the basis for the caveat and the box on its face, is sought to be justified by these words 'the facts contained in a statutory declaration lodged herewith' and that's the basis for the caveat, which is sought absolutely against that land.
The reverse page of the caveat indicates that it was lodged by a J Avsar, which I'm satisfied for the purposes of today, is Mrs Jennifer Patricia Avsar, the first defendant, and gives the address of c/o [redacted] Kardinya, WA, 6163, with the mobile number [redacted]. And attachment KPH2 to that affidavit is a document that looks to be a statutory declaration of Sean Omar Avsar, who also gives his address as c/o [redacted] Kardinya, WA, 6163 and describes himself as a 'pensioner' (ts 7 - 8).
In unpublished ex tempore reasons which I gave at 11.51 am that day, 29 April 2014, I had concluded (and it is now convenient to set out these unpublished reasons in full):
I'm satisfied that in quite exceptional and unusually urgent circumstances, that it is appropriate for this court to make orders in terms of the minute of orders of 28 April 2014. I will briefly articulate the reason why I think these circumstances are truly exceptional and warrant that relief and why, in the circumstances, it is also appropriate for me to waive the requirement that the plaintiff support this application, at least at this time, by an undertaking in the usual terms.
I start by reiterating that on Monday, 14 April 2014, I dismissed an application by Mrs Jennifer Avsar for an interlocutory injunction seeking to restrain any dealings by Jean Binning in action CIV 1037 of 2013 on the basis that there was, at that time, the pending settlement on the executory contract of sale by Mrs Binning as the executor of her late brother, John Robert Cowan's estate pending. I did not think that it was appropriate for any interlocutory injunction holding up that sale to be granted and I dismissed that application.
I also dismissed the action as a whole on the basis that it was, on my assessment, a naked abuse of process. I did give ex tempore reasons at the time and indicated that I reserved the right to edit and publish them. That's in the process of being done but that action, CIV 1037 of 2013, by Mrs Avsar was actually dismissed as an abuse of process on 13 April 2014 [sic]. In short, there had been three caveats which had, from time to time, been lodged in those 2013 proceedings.
The first was Mrs Avsar's caveat, L396496, which had actually lapsed when the matter came before me first in January 2013. At the time, the application was made by Mrs Avsar's daughter, Yasmin, to, in accord with s 138D, obtain the leave of the court so that either – no, obtain the leave of the court so that another caveat by Mrs Avsar seeking an interest in Lot 111 could be lodged. When that matter came before me in January 2013, I did not accede to that application. By that time, a second caveat had been lodged.
This was caveat M049607, lodged by Selim Avsar and the urgency in January 2013 was that that caveat was about to lapse. Equally, I declined to interrupt the lapsing of that caveat and it did lapse at or shortly after that time. But a third caveat was then lodged by Yasmin Avsar. This was caveat M154323. There were few details before me in January 2013 about that caveat other than the fact that it had been lodged, but those details came to light on 14 April 2014 in the wake of the imminent lapse of that caveat unless I took steps to extend it under s 138C of the Transfer of Land Act. In fact, by the time it got to me on 14 April, it had actually lapsed, at which time Mrs Avsar was then seeking an interlocutory injunction to restrain Mrs Binning from proceeding with selling Lot 111 and, again, I refused that application. What was quite apparent to me in dismissing that action as a whole was that there was a modus operandi, essentially, of members of the Avsar family stepping in to lodge caveats in the wake of the caveat lodged by either Mrs Avsar herself or then Selim and then Yasmin, lapsing.
It's quite clear that s 138D of the Transfer of Land Act, as regards unsuccessful applications to extend caveats which have been the subject of registrar's notices, says that where the court has declined to make an order extending the caveat which has been the subject of a registrar's notice so that it lapses, that subject to two qualifications, then further caveats cannot be lodged by that claimant. See s 138D(1) which relevantly provides, after sub paragraphs (a), (b) and (c):
'…then the caveator cannot lodge with the Registrar any further s 138A caveat in respect of the same land -'
Then there are two exceptions. One is under (d) for the consent of the proprietor and the other one is under (e) which is where the Supreme Court makes an order giving leave for the lodgement of the further caveat. And that, in fact, was the nature of Mrs Avsar's very first application: to extend her caveat L396496 back in January 2013. I am well satisfied that Mrs Avsar is fully familiar with the provisions of the Transfer of Land Act as regards caveats, in particular s 138B, s 138C and s 138D.
Given the inconvenience of the prohibition about the lodgement of further caveats under s 138D(1), it would appear that Mrs Avsar adopts the modus operandi of having members of her family step in to lodge fresh caveats so that, strictly speaking, s 138D(1) is circumvented. Now, that is the basis upon which on Monday, 14 April 2014, not only that I refused interlocutory injunctive relief but I dismissed that whole action as an abuse of process with costs to be taxed.
Astonishingly and very concerningly to the court, what appears to have happened is that on Wednesday, 16 April 2014, what on my reckoning would be a fourth caveat was lodged. This is caveat M61145 … this time by Sean Omar Avsar. And the effect of that caveat is that it has had the consequence of potentially interfering with the implementation of a settlement in respect of the pending sale of Lot 111 which, according to Ms Hills' affidavit, was due yesterday ‑ that is, Monday, 28 April ‑ and is pending.
Now, of course, the Registrar of Titles is obliged to receive materials that appear in regular form lodged and it would appear that he has received and is in the process of assessing the caveat of Sean Avsar, that I have received previously, and the supporting statutory declaration which contained some five paragraphs. I am concerned, extremely concerned, that the lodgement of this caveat at 1504 hours on Wednesday, 16 April 2014, was procured by Mrs Avsar.
The back sheet of the caveat shows it was lodged by J. Avsar which, in the circumstances, I am prepared to infer is Mrs Avsar, and that this has been done effectively in flagrant defiance of the conclusion reached by way of dismissal of action CIV 1037 of 2013 on the basis that it was an abuse of process. On that occasion, Mrs Avsar appeared in person and I also noticed her daughter at the back of the court as those proceedings unfolded.
It was quite plain that Mrs Avsar was very upset and disappointed at the outcome at the time but the wilful lodgement of a further caveat by another member of the family effectively thumbs its nose at s 138D of the Transfer of Land Act and, indeed, at this court. Having said that, let me evaluate the statutory declaration on its merits because it is somewhat new and the court is extremely cautious about jumping to conclusions in respect of matters of this kind. In the first place, I have already noted that the face of the caveat identifies an estate or interest as an equitable and beneficial owner.
Now, that, of course, says nothing in terms of what the nature of the interest is. So it is effectively a phrase or mantra frequently seen in respect of previous caveats lodged either by Mrs Avsar or members of her family in the other action. The basis for the so called equitable and beneficial owner interest is stated on the face of the caveat to be the facts contained in a statutory declaration lodged herewith. I turn then to the statutory declaration of Sean Omar Avsar.
I do so with the benefit of the observations made by Murphy J … in Gangemi v Gangemi [2009] WASC 195, particularly his Honour's observations at [40] to this effect:
'The caveatable interest must exist at the time the caveat is lodged; it cannot be lodged to protect an interest in the future.'
His Honour refers to Martin v Official Trustee in Bankruptcy (1990) Tas R 65, 69. His Honour then observes at [43]:
'A claim in a caveat to "an equitable interest", or an interest "as the beneficiary of a resulting or constructive trust" is defective in form.'
His Honour refers to Beech J's decision in Bashford v Bashford [2008] WASC 138 at [56], [92]. In Gangemi, Murphy J continued at [51] to observe as regards the claimed interest in that case:
'Accordingly, even if the land, or a chose in action to recover the land, had formed part of Domenica's estate, Anthony had, prior to completion of the administration, no more than a right to have the estate properly administered by the Public Trustee and he would not have had a caveatable interest in the land.'
His Honour refers to Dean & Westham Holdings Pty Ltd v Lloyd (1991) 3 WAR 235, 257; Re Hayes' Will Trusts (1971) 1 WLR 758, 764:
'The estate has since been administered and its assets distributed without any suit alleging maladministration by the Public Trustee.'
The last extract from Gangemi is his Honour's observations at [57] where he said this:
'Fifthly, Anthony's proposed claim under the Inheritance Act, rather than supporting his claim of a caveatable interest, seems to me to be inconsistent with his claim that he already has an interest in the land under the will. In any event, a claim of that kind does not support a caveatable interest: Quek v Beggs (1990) 5 BPR 11,761, 11,781.'
His Honour also observed there that that claim of Anthony was statute barred, referring to s 7(2)(a) of the Inheritance Act. By reference to the terms of the Inheritance Act, I will just mention before returning to the statutory declaration, that Act has subsequently been renamed the Family Provision Act 1972 of Western Australia. But, relevantly, s 6(7) of the Family Provision Act imposes a prima facie time limit of six months for an application under the Inheritance Act unless the court grants an extension of time: see s 6(7)(a) and s 6(7)(b).
That six month prima facie time limit subject to expansion by extension of the court is relevant in the present circumstances where the parties potentially the subject of an Inheritance Act or Family Provision Act application are long since deceased. I return then to paragraph – the paragraphs of Sean Omar Avsar's statutory declaration. In par 1 he says:
'I am lawful first grandchild of the late Antoinette Maria Cowan nee Haywood and John Robert Cowan.'
Let me say at the end of par 1 that that provides no basis for an arguable state or interest in land particularly as regards Lot 111. Paragraph 2:
'I am named beneficiary in both my grandparent's wills (see attached wills herein).'
I refer to my observations in the previous application dismissed as an abuse of process CIV1037 of 2013, but the position appears to be that Mrs Cowan or Ms Haywood predeceased John Robert Cowan. Lot 111 was held by them as joint tenants. By the law of survivorship Ms Cowan's interest in the property passed to Mr Cowan. When he died he left his estate which at that point comprised the entirety of Lot 111 to the plaintiff, Mrs Binning, his sister.
On that basis the fact of – no, I withdraw that. The will of the late Mr Cowan was before me in the previous proceedings, and it is quite plain that the sole beneficiary in respect of his property was Mrs Binning who is the administrator and plaintiff. To the extent – and that will has been admitted to probate. To the extent that Sean Avsar asserts that he's a beneficiary in Mr – the late John Robert Cowan's will then the attached will to which he refers is irrelevant because it is not a will to which probate has been granted. Accordingly par 2 sets up no arguable basis for a claim or estate of any legal or equitable kind in Lot 111.
Paragraph 3 of the statutory declaration says:
'I was also given an undertaking that I would benefit from their estates during their lifetime.'
As to that par 3 my observation is that it is vague. It is not clear who gave Sean the alleged undertaking, what was said, what was the nature of the undertaking or indeed what was nature of the benefit. There is no nexus therefore between this ill-defined, unspecified so called benefit from an estate and Lot 111. Accordingly, nothing emerges in par 3 of the statutory declaration to support any arguable basis for a legal or equitable interest in Lot 111.
Paragraph 4 of the statutory declaration Sean Omar Avsar then says:
'I claim beneficial interest and seek that adequate provision be made out of the estate of the deceased for my proper maintenance, support, education and advancement in life. I believe I am entitled to claim a benefit as promised to me, and under my grandparent's wills.'
Well, assuming that that is a reference taking the most favourable view possible of that paragraph, assuming it's a reference to the will of the late Mr Cowan the invocation of the formulae:
'Proper maintenance, support, education and advancement in life'
reeks of an attempted invocation of the Family Provision Act 1972, and its provisions under s 7. In the previous reasons for decision I rendered in 1037 of 2013 I made mention of an Inheritance Act action which had been lodged some years before. This would appear to be the action that Mrs Avsar's facsimile of this morning refers to. This is action 1402 of 2009. I indicated that the only party to those essentially inactive proceedings that I could identify from the Avsar prospective was Mrs Avsar herself.
The declaration, statutory declaration by Sean Avsar provides no information about him having commenced proceedings under the Inheritance Act himself in respect of advancing a claim against his suited grandfather's estate, and even if he had such a pending unresolved claim would not provide an arguable basis for contending for a legal or equitable interest in land. Inheritance Act claims are lodged almost on a daily basis in this court by disappointed members of families who think they should have been given greater provision under wills. Sometimes those proceedings succeed. Frequently they fail.
The fact that somebody has commenced an action is no basis at all for suggesting that whilst the action is on foot and before a determination is made in this court that they hold an interest in any specific property let alone a particular asset. In the present case the par 4 assertion therefore is vague, and ultimately as assessed untenable. That leaves par 5 which simply concludes:
'The nature of the estate and interest claimed in the land is as equitable and beneficial owner of that interest.'
That formulaic mantra seen in par 5 essentially is a cloak for nothingness and I assess is untenable. I also refer back to the observations in Gangemi v Gangemi made by Murphy J in terms of the claim to a sold called [sic] equitable interest or an equitable – or an interest as beneficiary of a resulting or constructive trust as not being an adequate formulation of such a claim.
Accordingly then, prima facie concerns which I hold about this caveat and the statutory declaration essentially being another abuse of process filed by another member of the Avsar family to hold up the plaintiff's dealings with Lot 111 are fortified by my analysis of the threadbare character of the statutory declaration put forward in support of that application.
Of course, I note that I have not heard Sean Omar Avsar, but I am satisfied that his mother at least has been given notice of today's proceedings and knows about them she being the person who lodged the caveat, and indeed that if efforts to contact Sean and give him notice of today's proceedings on the mobile telephone number which he chose to put on his caveat [redacted] have not had the effect of bringing him to court today then so be it, but I am satisfied that it is appropriate for these orders to be made now, and I particularly take note of the fact that Ms Hill's affidavit contains evidence of Sean's participation in the lodgement of another caveat against different land. See KPH4 at page 4 of that affidavit.
Again, on the basis of the vague mantra of an equitable and beneficial owner of an interest in land being there Lot 228, and upon the basis of the provisions of the Family Law Act 1975. That was a caveat of 15 August 2005. Again, that caveat was set aside. There were proceedings before Pullin and Newnes JJA, and the appeal was ultimately dismissed. There was some guardianship issues concerning Sean.
Again, the heavy hand of his mother looms large as having participated and expressed the desire to effectively use her son to put on a caveat against that different property. Effectively then the concerns which led me to dismiss action CIV1037 of 2013 as an abuse of process manifest again here as regards caveat M611465C which in my view should be removed as soon as possible.
To that end I am prepared to make extraordinary orders today first of all alleviating Mrs Binning from filing the usual undertaking as to damages, secondly, dealing with this matter at short notice as a matter of extreme urgency, and then the absence of any appearance by any of the defendants although I have noted the position by the Registrar, and thirdly, by making an order in terms of par 2 against the Registrar by way of restraint until further order on the basis that I fear that even orders in the terms under par 1 stand the risk of being undermined by further abuses of the court's process.
These are conclusions I must say that I do not reach lightly or in cavalier fashion. I have given considerable attention to the materials filed urgently in these proceedings today and before that the very long affidavit setting out the history of many instances of litigation involving Mrs Avsar and members of her family vis-à-vis Mrs Binning and associated interests in respect of the estate of the late John Robert Cowan and his late wife, Mrs Cowan née Haywood.
In the circumstances the interests of justice should not be undermined by what I assess to be an abuse of process, and the court should in my view take all steps that it can legitimately take in order to see that the processes of the court and the – in particular the provisions of section 138D of the Transfer of Land Act are not made impotent by a device of having disparate members of a family continue to lodge caveats against a piece of land simply on the basis of a defiant will that they will not abide by orders of the court or the statutory processes which cause their once scrutinised materials to be inadequate being interrupted. These abuses simply cannot be tolerated, and I am satisfied in the circumstances that the orders sought are appropriate (Note: My ex tempore reasons are slightly edited to account for grammar).

Events subsequent to 29 April 2014

The interlocutory injunctions which I issued at the behest of Mrs Binning on 29 April 2014, have remained in place, undisturbed until now.
Injunctions issued against the first, second, third and fourth defendants, appear to have had an effect of inhibiting any further caveats being lodged against the Fremantle Unit by members of the Avsar family. Moreover, the somewhat exceptional injunction that I issued against the Registrar of Titles (as fifth defendant) looks to have had the effect of inhibiting the ultimate acceptance for registration by the registrar of Sean Avsar's lodged caveat, M611465. That happy outcome in turn now raises a legal question as regards that caveat as it is complained of - namely, whether it was ever 'lodged', for a purpose of enabling the present application for compensation by Mrs Binning under s 140 TLA, as currently pursued.
By my assessment, the word 'lodged' must carry its natural and ordinary meaning. There is no doubt there was an attempt by Sean to have that caveat of 16 April 2014 recorded against the registered title of the Fremantle Unit. It was lodged for dealing but, in the end, was not accepted by the registrar. In the end, it looks to be that only through the intervention of Mrs Binning's application made urgently to this court on 29 April 2014 and my ensuing interlocutory orders that day that an acceptance result as regards Sean's lodged caveat M611465 was interrupted.
Hence, I conclude there is, other things being equal, no obstacle then, as a matter of principle, to a claim for statutory compensation against Sean in respect of lodged caveat M611465, albeit it was not in the end registered against the title of the Fremantle Unit.
However, Mrs Binning is only pursuing a claim for her legal costs in respect of Sean's caveat, to the extent of $2,037, as she has articulated under her claimed caveat compensation breakdown document, pursuant to the aide memoire handed to the court by Mrs Binning's counsel on 22 February 2016. However, all legal costs associated with Mrs Binning's successful application for interlocutory injunctions on 29 April 2014 should properly be the subject of a separate award of (in the circumstances, indemnity) costs made in respect of her interlocutory injunction application of that day.
Hence, a costs order in this action as regards the application made and dealt with on 29 April 2014 should be against the first and second defendants, that is, made as against Mrs Avsar and as against Sean, by reason of their joint caveat lodgement conduct. This conduct was the attempt to have caveat M611465 accepted, which occasioned the 29 April 2014 successfully obtained interlocutory injunctions by Mrs Binning.
Those costs at the time had been reserved in this action. I had said:
6.There be liberty to apply, including as to the reserved costs of today's application, which the plaintiff foreshadows as being claimed on indemnity basis.
Consequently, it will be unnecessary for me to otherwise address s 140 TLA and Sean Avsar's caveat M611465 which was lodged, but which was interrupted and not ultimately accepted for registration by the registrar.

Mrs Binning's efforts to sell the Fremantle Unit (2010 - 2015)

The following further facts which I find on the evidence are relevant to Mrs Binning's attempts over time to sell and realise the proceeds of the Fremantle Unit.
On 29 October 2012, Mrs Binning signed an agreement appointing Dethridge Groves her agents, as part of her plan to dispose of the Fremantle Unit. In March 2013 she signed an extension of the agency agreement.
But also in March 2013, Mrs Binning was advised by those agents that because she could not guarantee further caveats would not be lodged by the Avsar family, Dethridge Groves would no longer market the Fremantle Unit for sale. That was after Yasmin filed caveat M154323 of 10 January 2013 and which remained in place, until it lapsed, on 11 April 2014.
In May 2013, Mrs Binning borrowed $87,000 from Westpac bank to meet the legal costs she was incurring as administratrix of the estate in the multi‑faceted ongoing litigation against Mrs Avsar on several fronts.
In August 2013, Mrs Binning reluctantly sold her family home at Innaloo to repay her Westpac loans,
On 3 February 2014, Mrs Binning, with Yasmin's caveat then still in place, signed an agreement with new agents, Yard Realty, effectively engaging fresh agents to try and effect a sale of the Fremantle Unit.
Some point after that time a prospective purchaser was obtained, as I mentioned in the 29 April 2014 unpublished reasons as set out earlier.
Finally, on 8 May 2014, Mrs Binning was able to effect settlement upon a sale of the Fremantle Unit, for $290,000.
I turn back to the evidence in respect of each of the four caveats complained of and compensation claims.

Evidence in respect of each of the four caveats complained of and compensation claims

This evidence as related is found essentially within Mrs Binning's affidavit of 14 November 2015, exhibit B.
Mrs Avsar's caveat L396496 of 10 August 2010 can be found as annexure JB‑2 at pages 18 and 19. It refers to her statutory declaration also of 10 August 2010, which is found at pages 20 - 21. I return to offer some observations concerning this caveat and the asserted basis of an interest in the Fremantle Unit it in due course.
The second caveat complained of is caveat M049607. This was Selim Avsar's caveat. It is found as a part of attachment JB-6 to the affidavit: see pages 34 - 36 of caveat M049607, lodged on 17 September 2012. The strata interest claimed by Selim can be seen from the face of this caveat as 'Equitable and beneficial owner - and - Lessee with a Fixed Term Lease Agreement since 28 December 2005 until 2016'. That caveat also refers to a statutory declaration lodged with it. Selim's statutory declaration is found as a part of attachment JB-6 at page 33.
The third caveat complained of is caveat M154323 lodged by Yasmin Avsar (fourth defendant) on 10 January 2013. The caveat itself is found as attachment JB-10 to exhibit B: see pages 51 - 53. The interest now claimed by Yasmin in the Fremantle Unit is as 'Equitable and beneficial owner'.
The face of her caveat refers to her claim for an estate or interest as being based upon 'The facts contained in a statutory declaration lodged herewith'. Her statutory declaration is of five paragraphs and is declared on 10 January 2013: see page 54 of Mrs Binning's affidavit. Yasmin said:
1.I am the lawful third grandchild of the late Antoinette Hayward (nee Cowan) and John Robert Cowan.
2.I claim beneficial interest third in time after my mother J.P. Avsar and my brother Selim Avsar (the lesee [sic]) and creditor owed monies from the estates of my grandparents.
3.I am entitled to claim interest in the said land described in certificate of title Vol 1485 Folio 311 being Lot 111 on strata plan 5493 situated at 905/23 Adelaide Street Fremantle 6160, and until final settlement of all the Avsar family's claims against the estate of my grandparents.
4.I am also awaiting further orders in action number CIV 1402 of 2009 by virtue of the Inheritance (Family and Dependants Provision) Act 1972 amended.
5.The nature of the estate and interest claimed in the land is as equitable and beneficial owner of that interest.
The last (fourth) caveat complained of on Mrs Binning's application for compensation is caveat M611465, lodged on 16 April 2014 by Sean (the second defendant). This caveat, as I have mentioned, appears to have been disrupted by the injunctive orders I issued and, therefore, was not ultimately accepted and registered on the title. Caveat M611465 of 16 April 2014 can be found in part at page 86 of Mrs Binning's affidavit as a part of attachment JB-17. I say 'in part' because the face page of this caveat appears to have been omitted. The cover indicates it was lodged by a J Avsar, care of [redacted] Kardinya, WA 6163, with a mobile telephone number added. A stamp from the Registrar of Titles on the document displays this as being an unregistered document bearing a stamp with the inserted date 23 April 2014.
The statutory declaration which accompanied the caveat by Sean (see pages 87 and 88 of that affidavit) is brief, over some five paragraphs. It describes Sean as being care of [redacted] Kardinya. Sean describes himself as a pensioner. He continues:
1.I am the lawful first grandchild of the late Antoinette Maria Cowan (nee Hayward) and John Robert Cowan.
2.I am named beneficiary in both my grandparent's will/s (see attached will/s herein).
3.I was also given an undertaking that I would benefit from their estates during their lifetime.
4.I claim beneficial interest and seek that adequate provision be made out of the estate of the deceased for my proper maintenance, support, education and advancement in life. I believe I am entitled to claim a benefit as promised to me, and under my grandparent's will/s.
5.The nature of the estate and interest claimed in the land is as equitable and beneficial owner of that interest.
Sean's statutory declaration bears the stamp of the Registrar of Titles dated 23 April 2014, recording it also to be an unregistered document.

Mrs Avsar's caveat L396496

In an earlier section of the reasons I have already identified whilst assessing chronological events, that this absolute caveat was lodged on a wholly false premise that Mrs Avsar was then the administratrix of the estate of her mother. The reasons and decision published in Avsar v Public Trustee [2010] WASC 11 on 18 March 2010 explicitly denied Mrs Avsar that claimed status. Self-evidently, I find she knew that. Notwithstanding, there was the inevitable appeal by Mrs Avsar in person, it was determined and dismissed by Pullin JA and Hall J as Avsar v Public Trustee [2011] WASCA 77 on 4 April 2011.
There never was any legitimate basis for Mrs Avsar to rationally or reasonably believe that she had attained the status or position of being the administratrix of the estate of her late mother. She held nothing that was sufficient to support her lodgement of this caveat, or claiming such a capacity or position.
Mrs Avsar had needed to lodge a caveat invoking that asserted new capacity - otherwise she may have run into lodgement obstacles associated with lodging yet another caveat in her own name. That would have been vulnerable to detection, as being contrary to s 138D TLA, since her two earlier caveats, G149109 and G68354, had respectively lapsed on 15 and 17 March 1999, following the registrar's s 138B notices, as I discussed earlier. The invocation of a bogus capacity as administratrix of her late mother was effectively used, I find, as a ruse by Mrs Avsar to avoid the constraints of s 138D. But there were even further deficiencies.
Mrs Avsar's statutory declaration said that she was claiming her (ie, personal to her) interest in the Fremantle Unit - as a legal and beneficial owner of property, by reason of a will of her late mother made in 1987. Mrs Avsar also indicated that, by reason of Family Court proceedings PT 1162 of 1996, District Court proceedings CIV 3175 of 1997, a pending appeal, CACV 64 of 2010 from the Supreme Court proceedings, and Supreme Court proceeding CIV 1402 of 2009, that (somehow) all this together might translate into a legal and beneficial interest for her sufficient to support this caveat. But this jumbled up and aggregated confusion was just a case of Mrs Avsar stirring up a lot of dust to obscure what at root was a nothing interest, by her as regards the Fremantle Unit.
Mrs Avsar's then asserted claim as a legal and beneficial owner by reason of a 1987 will of her late mother had very conveniently ignored that her mother had executed three subsequent wills between 1991 and before her death in 1994 (which I identified in the reasons in Avsar v Public Trustee [2010] WASC 11 at [10] as wrong). Moreover, Mrs Avsar was by then, I find, more than well aware that her mother's interest in the Fremantle Unit had passed to John on survivorship principles, rather than under the will of her late mother. Her correspondence with Mr Cowan in the immediate period preceding her mother's death and thereafter very clearly demonstrates that she was well aware of this, particularly with regards to her early but unsuccessful effort to have John sign a document that would sever the joint tenancy interest over the Fremantle Unit.
Nor would an existence of Family Court litigation (with both her mother and Mr Cowan then deceased) possibly support a claimed interest in Mrs Avsar to sustain her 10 August 2010 caveat. By then a District Court action CIV 3175 of 1997 had been adversely determined against Mrs Avsar by Judge Keane (see Avsar as administratrix of the estate of Antoinette Maria Cowan v Westland Healthcare Ltd [2007] WADC 27 on 15 March 2007. Mrs Avsar obviously knew that.
Then, CIV 1402 of 2009 was Mrs Avsar's application out of time in this court to commence proceedings under the Family Provision Act 1972 (WA). This ultimately led nowhere. Mrs Avsar had commenced that application (supported by affidavit) by her originating summons on 26 February 2009. No steps appear to have been taken in that litigation until 28 April 2014, when Mrs Avsar amended her originating summons and filed certificates of service. On 22 May 2014, Master Sanderson in this court set aside this originating summons as an abuse of process.
Personal injury claims for damages in the District Court of Western Australia and potential claims against a testator or testatrix under the Family Provision Act do not support an arguable basis for Mrs Avsar showing an interest in the Fremantle Unit. There is no basis apparent to suggest that Mrs Avsar could possibly have held an honest belief to that end.
Effectively then, I can conclude that Mrs Avsar was desperately scrambling to find anything she could, to manufacture a basis to support her caveat - to inhibit a sale of the Fremantle Unit by Mrs Binning. Nor can applications under the Family Provision Act for provision out of an estate of themselves generate a basis to support an arguable caveatable interest in land: see The Public Trustee in and for the State of Western Australia as administrator of the estate of Yanya Bebich v Bebich [2013] WASC 456 [11] and Stacey v Stacey [2010] WASC 85.
Furthermore, by the provisions of the Family Provision Act, Mrs Avsar did not have standing under s 7 as it then stood in 2010 to make a claim under that legislation against John's estate. At best, she was a stepchild, but never could be regarded as a child of John Cowan. Amendments to this Act giving limited standing to stepchildren to claim were not effective as amendment legislation by the WA Parliament, until February 2013. Mrs Avsar's action invoking the Family Provision Act in CIV 1402 of 2009 was always meritless. It was rightly dismissed on 22 May 2014 by Master Sanderson as an abuse of process.
In light of what is a disturbing and concerning history of conduct associated with Mrs Avsar and perennial refusals to ever accept an adverse outcome, no matter how obvious, I draw the conclusion that her lodging of this caveat was for an ulterior purpose ‑ namely, to cause mischief against Mrs Binning's administration of Mr Cowan's estate and to inhibit a sale of the Fremantle Unit, at any cost. This was part of some overall tactic to apply irritant pressure, first to Mr Cowan and then after his death, to Mr Cowan's estate through Mrs Binning.
I conclude that Mrs Avsar did not hold any honest belief that she held a caveatable interest to support her caveat L396496, as at 10 August 2010 or thereafter.

Selim Avsar (third defendant): caveat M049607

This was also an absolute caveat that was lodged at Landgate on 17 September 2012. Under his accompanying statutory declaration, Selim claimed to be a creditor of the estates of both John Cowan and Antoinette Cowan. He also claimed to be holding a right under a lease of 28 December 2005.
Bare unsecured creditors do not get, hold or enjoy caveatable interests in land simply on a basis of being owed money: see Bank of Western Australia v Connell (1996) 16 WAR 483, 487 - 494. There is no basis apparent for Selim to have ever held a reasonable belief to that end.
A tenant, of course, may have a caveatable interest in land based upon their leasehold interest. But here, the alleged lease that was invoked by Selim under his statutory declaration is said to have been as between himself and the 'registered proprietor' in December 2005. But neither John Cowan nor Antoinette Cowan were alive then. Hence, neither could have entered any lease with Selim. Moreover, I note Selim's caveat was lodged on the very same day his mother's earlier caveat had lapsed, after there had been failure by Mrs Avsar to respond to the s 138B notice sent to her.
The evidence before me, particularly what was later sworn to by Yasmin, in respect of the attempt to obtain an interlocutory injunction, which I refused in January 2013 in Mrs Avsar's action 1037 of 2013, renders it even more than plain that both Selim and Yasmin were used as 'tools' - effectively participating with their mother in an attempted holding tactic, whilst their mother was overseas.
I infer that Selim's caveat was lodged for an ulterior purpose, namely, to perpetuate a clogging up of the title of the Fremantle Unit against it being sold. That blocking result had been achieved for over two years under Mrs Avsar's caveat, but which had finally been brought to an end by her failure to respond in time to a s 138B notice and the running of the 21 days under it.
Selim was, I infer, effectively assisting his mother, by causing disruption to the title of the Fremantle Unit in a hope of thwarting a sale by Mrs Binning as administratrix of the estate of John Cowan.
I would also infer, in the absence of anything filed on behalf of members of the Avsar family resisting Mrs Binning's present application, that Selim lacked any honest belief as to the validity of his caveat. There is nothing legitimate that emerges on the evidence towards him genuinely or reasonably believing that he, personally, ever held any interest in the Fremantle Unit that was sufficient to support his caveat. His attempted invocation of the status of a creditor, or as tenant by reference to a lease, was just a ploy to achieve the end of stopping any sale of the Fremantle Unit.

Yasmin Avsar (fourth defendant): caveat M154323

This (relevantly, third) caveat was lodged at Landgate on 10 January 2013. It was supported by Yasmin's statutory declaration to which I have referred. Again it was an absolute caveat. Yasmin sought to claim on a basis of being third in time after her mother and brother, as a creditor. A claim to a caveatable interest in land on the basis of merely being a creditor was, as I have mentioned, wholly misconceived: see Bank of Western Australia v Connell.
A claim by Yasmin to an interest in the Fremantle Unit as a potential beneficiary of Mr Cowan's estate under Family ProvisionAct proceedings CIV 1402 of 2009, was equally fallacious. No claim was ever made in those proceedings by Yasmin. Nor could she have ever legitimately advanced such a claim. Yasmin did not fall within a class of person entitled to claim under s 7 of the Family Provision Act, as it then stood. Section 7(1)(d) only afforded standing to a claim of a grandchild of a deceased at that time, if:
(a)that person was being maintained by the deceased at the time of the deceased's death - as to which there is no such evidence concerning Yasmin and hence no basis to legitimately believe that the provision might ever be applied to her as such a grandchild; or
(b)the relevant parent had already died at the time of the death of the deceased. Clearly, on what has been seen, her mother, Mrs Avsar, was very much alive in January of 2013 and Yasmin, I conclude, plainly knew that.

Decision: bank fees and interest

Whilst I completely accept what Mrs Binning says in her exhibit B, the legal difficulty that I hold against allowing that claim for bank fees and interest, in respect of any of the four caveats is that those bank interest fees do not appear to me to be, based upon what Mrs Binning says in her exhibit B, to be tied exclusively to a particular caveat or caveats. They are not identified as bank fees associated with paying interest on loans taken out in order to exclusively fund litigation that was directed at procuring a removal of one or other of the caveats lodged by the four members of the Avsar family. In short, the position is too rolled up and generalised to show an expense loss nexus to the consequences of a particular caveat.
All I can ascertain from exhibit B is that Mrs Binning borrowed $30,000 and then a further $87,000 from Westpac between 2010 and 2013. That she said was in order to fund the estate's legal participation in what was over time a plethora of legal disputes against Mrs Avsar and members of her family, in various courts and places. That is insufficient.
In her par 36, set out above, Mrs Binning refers to proceedings in the Magistrates Court, the Family Court of Western Australia, in various appeals, and also in the District Court of Western Australia. I fully accept Mrs Binning incurred legal fees and borrowed from Westpac to pay them as she identifies. The difficulty is that from a causation perspective, there is a failure to sufficiently apportion a particular amount of interest paid, or a particular bank fee to the consequences of a particular caveat. Indeed, I read Mrs Binning's evidence to say that she essentially borrowed in order to globally fight a host of legal battles, across numerous fronts against Mrs Avsar and her family.
From the perspective of a statutory compensation claim made under s 140 TLA, such globalised evidence is insufficient from a causation perspective. In other words, Mrs Binning needed to show me precisely that a particular loan upon which incurred the interest exposure and the bank fee was associated with legal work that was charged to her, for and paid, in respect of a particular caveat. Her evidence does not rise that high. That is not a criticism, it is simply a result of the strictures of s 140 TLA. Consequently, I cannot allow Mrs Binning's claims in respect of the interest and bank fees paid to Westpac in respect of loans taken out by Mrs Binning to fund the ongoing legal expenditures necessarily incurred by her in multi-faceted litigation against Mrs Avsar and her family in multiple jurisdictions.
That aspect of her claim to financial compensation has not been demonstrated to my satisfaction and must fail.
I now move to deal with Mrs Binning's claims in respect of her claim for fees paid to her legal representatives, claimed in respect of the caveats. Regrettably again, these claims suffer a similar causation deficiency - by not being shown to specifically relate to a legal expenditure rendered in respect of one or other of the four caveats at issue.

Claims for moneys paid to Mrs Binning's legal representatives

According to Mrs Binning's damages breakdown aide memoire document of 22 February 2016, provided at the hearing by counsel, Mrs Binning's claim for compensation is first raised against Yasmin Avsar (the fourth defendant) in respect of caveat M154323 (which was in situ for roughly a 15‑month period between 10 January 2013 and 11 April 2014). Claimed amounts are for $2,101.50, referring to attachment JB-14 to exhibit B (a Hartrey Legal invoice of 31 January 2014), which by its itemisation (see page 76) identifies time sheet entries over a period 25 October 2013 to 31 January 2014.
There is a further claim for fees paid to counsel of $3,685, then a claim for legal fees of $2,485 referable to attachment KH-1 to Ms Hill's affidavit which is exhibit C. As regards further fees paid to counsel, see attachment JB‑13 to exhibit B (A O Karstaedt invoices of 9 December 2013 and 3 January 2014).
There is a further global claim in respect of legal fees paid to Mrs Binning's legal representative in the amount of $2,037, by reference to attachment KH-2 to Ms Hill's affidavit, exhibit C. That is Hartrey Legal's invoice of 12 September 2014 to Mrs Binning in the amount of $2,270.40 (GST inclusive) excluding disbursements. The fees are said to be as per an attached schedule. However, there is no attached schedule to KH-2. Likewise, there is no attached schedule to KH-1, albeit that tax invoice of 1 November 2013 refers to a schedule.
As I observed earlier, a basis for an appointment of the joint liability of two different caveators (Yasmin and Sean in respect of caveats M154323 and M611465), is the premise for that claim to $2,037.
No case authority cited to me, or that I could find, supports the making of a joint claim for compensation under s 140 TLA as between different caveators. Hence, the claim must fail conceptually on that basis alone.
More particularly, however, as against Yasmin for this claim for counsel fees and the solicitors and legal practitioner fees, in a global amount of $3,685 (counsel) plus $2,101.50 plus $2,485, all that expenditure is claimed in respect of Yasmin's caveat M154323. Yasmin's caveat ended by the force of a running of time following the registrar's s 138B notice to her on 11 April 2014.
Yasmin's caveat did not end upon a basis of any order of myself or any other member of the court to the effect that it be removed, or an order that the Registrar of Titles remove it. Rather, it ended upon the failure of Yasmin to justify her caveat in time, after the issue of the registrar's s 138B(1) notice. Legal fees incurred as being associated with providing of legal advice in respect of liaising with the Registrar of Titles to secure the issuing of a s 138B notice could be sufficiently causatively linked to the lodging of this unsupportable caveat without cause. But that, as I understand it, is not the nature of the claim as advanced here.
Legal fees incurred and claimed appear to be tied essentially with two legal actions in this court. First is the termination of Mrs Avsar's own action CIV 1037 of 2013, brought against Mrs Binning as first defendant (and the Registrar of Titles as second defendant). As mentioned, that action was terminated by me as an abuse of process on 14 April 2014 (see Avsar v Binning [2014] WASC 188). As seen at [58] of my reasons I then ordered that:
Mrs Avsar shall pay the first defendant's costs of her failed application and, as well, of her now dismissed action, to be taxed.
My orders of 14 April 2014 already cater expressly for Mrs Binning's taxed legal costs of her resisting those proceedings commenced by Mrs Avsar against Mrs Binning as CIV 1037 of 2013, including for costs of the arguments put before me on 14 April 2014.
The present claim for statutory compensation is brought against the actual caveator, Yasmin. She was not a party to the now dismissed action CIV 1037 of 2013. The taxed legal costs associated with Mrs Binning's participation in that action have been ordered, only against Mrs Avsar.
Furthermore, concerning Yasmin, the formulation of a claim against her aggregating to $8,271.50 is not, from a causation perspective, shown to be exclusively tied to the effects of her own caveat M154323. Those legal expenses of Mrs Binning as claimed look to me to have been incurred in the wider context of Mrs Binning's participation in, and her defending of, Mrs Avsar's action and then also of her resisting Mrs Avsar's claimed interlocutory relief under CIV 1037 of 2013, including appearances before me on 15 January 2013, Pritchard J on 3 April 2014, and then, on the occasion when I dismissed Mrs Avsar's action as an abuse of process on 14 April 2014.
I conclude that it is not appropriate to seek all those legal costs against Yasmin, as a result of Yasmin's caveat M154323. Some of those claimed legal costs look to be associated with the urgent interlocutory injunction proceedings that were heard before me in this present action in CIV 1563 of 2014, on 29 April 2014.
On 29 April 2014, as I mentioned, I granted relief at Mrs Binning's behest against all defendants as members of the Avsar family injunctions restraining them from issuing further caveats and, as well, as against the Registrar of Titles (as fifth defendant) against the receiving of any further caveats from those members of the Avsar family.
Those orders were made urgently to facilitate a settlement upon the sale of the Fremantle Unit which was then pending, but its settlement was threatened by a lodgement of another caveat, this time from the second defendant (Sean), on 16 April 2014.
Those reasons earlier have incorporated the text of the unpublished reasons which I delivered on 29 April 2014. As will be seen from those reasons Sean's caveat, albeit lodged, was not accepted to be registered. It was stamped as an unregistered document by the registrar on 23 April 2014, as is seen.
Furthermore, it may be seen that I had by my order reserved the costs of that application on 29 April 2014.
On this present application, Mrs Binning through her counsel also seeks on an indemnification basis the reserved costs of that interlocutory application I heard on 29 April 2014 for interlocutory injunctions granted that day (which injunctions have remained in place up to the present time).
What I was presented with on 29 April 2014, as a matter of some urgency, were facts showing that in the wake of my having dismissed Mrs Avsar's action CIV 1037 of 2013 as an abuse of process on 14 April 2014, that there was now emerging, in the face of a looming settlement upon the sale of the Fremantle Unit, a real prospect of a caveat from Sean, further interrupting the settlement.
Two more issues present. First, is the question of legal costs sought as against Sean and Yasmin in the amount of $2,037 (by reference to KH-2 and exhibit C). I would not allow that claim to costs as statutory compensation to Mrs Binning, by reason of Sean's caveat M611465 - which, as I explained, was lodged, but never accepted or registered by the Registrar of Titles.
I have already referred to the content of that caveat found within exhibit B (in part). As indicated, the cover page, JB‑17, on page 86, indicates it was lodged by a J Avsar, care of [redacted] Kardinya. I will infer that this caveat was caused to be lodged by Mrs Avsar using the ruse of lodging it in the name of her adult son, Sean. I say 'ruse' because it is clear to me that Mrs Avsar had very well understood, since her unsuccessful injunction application to me of January 2013, the force of s 138D TLA in terms of that provision inhibiting her from lodging subsequent caveats for the same interest in land without leave of the court, where there has been a failure to respond in time to a s 138B TLA notice given by the registrar and a lapse in respect of that earlier caveat by that caveator. I infer and conclude that Mrs Avsar, to get around the s 138D problem for herself, in effect, used other members of her family in respect of subsequent caveats to avoid that obstacle against her lodging further caveats.
On my assessment, the correct course is to allow Mrs Binning her full out of pocket legal costs on a full indemnity basis - in respect of her urgent application, that she was required to bring for interlocutory injunctions on 29 April 2014.
Hence, in respect of the legal costs for that application which I reserved on that day, I will award them on a full indemnity basis against Mrs Avsar as the first defendant but also, as against Sean Avsar as the second defendant. The conduct of those two defendants, in my view, occasioned the need for that urgent application that day. But I am not satisfied that any costs orders should be made against Selim or against Yasmin Avsar, in respect of the hearing costs on 29 April 2014. It was essentially the ongoing defiance of Mrs Avsar and some assisting participation from Sean, as the first and second defendants respectively, which that day occasioned a need for the urgent injunctive relief, which has remained in place.
Therefore, I do not think it appropriate to issue any award of those costs as against Selim and Yasmin Avsar in respect of the events of 29 April 2014, although it was then proper to seek injunctive relief against them, given their prior antecedent caveat lodgement conduct, associated with the earlier caveat M049607 (in the case of Selim) and M154323 (in the case of Yasmin).
That leaves only some residual claims in respect of Selim, Yasmin and Sean. I move to deal with these briefly below.

Claim in respect of Selim's caveat M049607, third defendant

As against Selim, I am prepared to allow Mrs Binning her Landgate fees incurred in procuring the issue by the registrar of the s 138B notice, which issue occasioned, in the end, the expiry of this caveat, on 10 January 2013.
Beyond that, however, I decline to allow on the basis it is not proven any further claim for statutory compensation under s 140 TLA against Selim, as the third defendant in this action.
The claim against Selim in respect of bank fees and interest is not sufficiently tied to his particular caveat - for reasons I earlier explained.
In respect of the claim for strata levy fees and local authority rates as against Selim, I am also not satisfied that his caveat, M049607, was a relevant cause of the Fremantle Unit not being sold, prior to 10 January 2013. There were the other factors which I have already now discussed which were the inhibitions against such a sale. Moreover, giving credit in respect of the rental received since the premises were rented out by Mrs Binning as she relates at par 57 of her affidavit (exhibit B), these would need to be set off in any event that amount as a credit against such a claim.
In other words, even were it accepted that strata levy fees and local authority fees had been incurred in respect of the Fremantle Unit as unnecessary outgoings, by reason of it not being able to be sold as would otherwise have been Mrs Binning's intention, nevertheless, she successfully mitigated her loss by renting out the premises for a period. During that time she received as an incoming benefit the rental from her tenant which she would not otherwise have received had the Fremantle Unit been earlier sold. Receipt of that benefit money wholly offsets these holding costs as claimed.
That extinguishment by set-off factor also applies in respect of all claims to strata levy outgoings and outgoings paid by way of rates paid to local authorities, in respect of the Fremantle Unit.
Hence, as against Selim and Mrs Binning's claim to statutory compensation arising in respect of caveat M049607, I can allow to her as proven only the Landgate fees of $353.70.

Claim against Yasmin as fourth defendant in respect of her caveat M154323 (registered for the period 10 January 2013 to 11 April 2014)

This caveat lapsed automatically on 11 April 2014, after an issue at Mrs Binning's behest through her legal representatives, of a request to the Registrar of Titles to issue a s 138B notice. A s 138B notice was duly issued and subsequently was not responded to by Yasmin within time to justify the continuance of that caveat. Consequently, it expired on 11 April 2014. In consequence, I allow to Mrs Binning her claim against Yasmin in the amount of $474.35 in respect of the fee paid to Landgate for the issue of the s 138B notice by Landgate that would otherwise not have been incurred but for Yasmin's lodging of this caveat without reasonable cause on 10 January 2013 (although I also find that Yasmin did this at the behest of her mother, Mrs Avsar). Nevertheless, Yasmin is an educated adult and she must bear responsibility for her own conduct, albeit it was heavily influenced by, I conclude, her mother.
For reasons earlier given, I do not allow a claim against Yasmin for legal outgoings and counsel's fees, since they are not specifically tied and shown to be causatively linked to effects of Yasmin's caveat. The legal outgoing expenses were incurred for reasons and motivations that extend wider than simply this caveat of Yasmin.
Also, for reasons already now given, I do not allow the claim for strata levy fees and local authority rates as outgoings. The position here factually is slightly different. On my assessment, the Fremantle Unit could probably have been sold, but for the existence of Yasmin's caveat M154323 in a period between January 2013 and April 2014. However, Yasmin's caveat did not frustrate the settlement upon the sale contract in respect of the Fremantle property and then, there was incoming rental across this period which would offset strata levies and outgoings in respect of rates, for which credit is rightly given.
Furthermore, Mrs Binning again properly accepts that her inability to market and sell the Fremantle Unit in this period did not affect its eventual sale price, at ultimately the amount of $290,000. For those reasons, a s 140 claim cannot succeed against Yasmin beyond a claim for the expended Landgate fees of $474.35 to issue the s 138B(1) notice that ultimately ended Yasmin's caveat.

Mrs Avsar

I have already indicated that a global claim raised against all defendants for the amount of $10,000 in respect of distress, inconvenience and frustration cannot succeed.
Nor could I, on my assessment, by reference to the scope of s 140 TLA, attribute to Mrs Avsar responsibility for the distress and frustration of Mrs Binning associated with the three ensuing caveats lodged subsequent to the lapse of Mrs Avsar's own caveat L396496, after 17 September 2012. That is my legal conclusion, notwithstanding I am thoroughly persuaded that Mrs Avsar is responsible for influencing her adult children to act with her in the preparation and filing of those caveats and associated documents. In the end, the state of the law only permits me to hold her responsible under s 140 TLA for the filing fee paid to Landgate of $324 to cause the issue of a s 138B notice that brought her caveat to an end.

Conclusion

In the end, the orders that should issue for statutory compensation under s 140 TLA present as follows.
(i)As against the first defendant, Mrs Jennifer Avsar, compensation in respect of her caveat L396496 in the amount of $324.
(ii)As against the second defendant, Sean Omar Avsar, in respect of his lodged, but ultimately unaccepted and unregistered, caveat M611465, $NIL.
(iii)As against Selim Avsar, the third defendant, in respect of his caveat M049607, the amount of $353.70.
(iv)As against Yasmin Avsar, the fourth defendant, in respect of caveat M154323, the amount of $474.35.
In reference to the costs upon the application of Mrs Binning for interlocutory injunctions which I issued at her behest against all defendants, including the fifth defendant, on 29 April 2014, I should award her legal costs and any disbursements for that application on a full indemnity basis. That is, I order that she should receive her costs save to the extent that they are of an unreasonable amount or, assessed to be of an unreasonable amount or assessed to be unreasonably incurred. Those costs orders in respect of the 29 April 2014 injunction application will be issued only as against the first defendant, Mrs Avsar, and the second defendant, Sean Omar Avsar.
There remains, of course, to be determined the costs in respect of this application for statutory compensation which has been successful only to the modest extent of in aggregate, $1,152.05. I will hear counsel for Mrs Binning in that respect.
Furthermore, it appears to be accepted that upon a conclusion of this application for statutory compensation under s 140, that all aspects of this originating proceeding commenced 29 April 2014 are then determined, with the action thereby completed.
I also note that interlocutory injunctions which I issued on 29 April 2014 against the first, second, third and fourth defendants and separately and in distinct terms as against the fifth defendant, have now served their purpose with the settlement on the sale achieved in respect of the Fremantle Unit in May 2014 and so, its disposition to the new owners. There is no further utility in those injunctions which appear to have remained in place effectively by way of oversight since the 2014 settlement on the Fremantle Unit. I should, therefore, also formally order that those interlocutory injunctions be discharged.

Postscript

The matters which I have now related are disturbing to anyone with a sense of justice. They showcase a sustained abuse of the caveat lodgement system used in this state. I have recorded these matters out at some length in these reasons, although the sum at issue is very modest, to record for posterity what is a scandalous and wholly unacceptable situation productive of great injustice, not to mention the distress and aggravation to law abiding persons. They have a right to expect better from this system.
The collected facts herein cry out for urgent statutory reforms to afford more powers to the courts to facilitate earlier interventions to protect the public from the harm of those caveators who repeatedly abuse a land registration system that was designed to protect, but which now is too easily manipulated towards the ends of abuse.