Joss v Beamish - [2025] WASC 289

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   JOSS -v- BEAMISH [2025] WASC 289
CORAM:   SEAWARD J
HEARD:   3 JULY 2025
DELIVERED          :   3 JULY 2025
FILE NO/S:   CIV 1545 of 2025
BETWEEN:   KARA LEE JOSS
Plaintiff

AND

NGAIRI BEAMISH
First Defendant

REGISTRAR OF TITLES
Second Defendant

Catchwords:

Real property - Caveats - Application to extend operation of caveat pursuant to s 138C(1) of the Transfer of Land Act 1893 (WA) - Whether plaintiff has established a serious issue to be tried as to caveatable interest - Balance of convenience - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA)
Transfer of Land Act 1893 (WA)

Result:

Caveat to lapse at midnight on 3 July 2025
Plaintiff granted leave under s 138D of the Transfer of Land Act 1893 (WA) to lodge fresh caveat

Category: B

Representation:

Counsel:

Plaintiff	:	In Person
First Defendant	:	In Person
Second Defendant	:	No appearance

Solicitors:

Plaintiff	:	In Person
First Defendant	:	In Person
Second Defendant	:	No appearance

Cases referred to in decision:

Bashford v Bashford [2008] WASC 138
Bride v The Registrar of Titles [2015] WASC 11
Leros Pty Ltd v Terara Pty Ltd [1992] HCA 22; (1992) 174 CLR 407
Palazzo Homes Pty Ltd v Goh [2010] WASC 407

SEAWARD J:

(This judgment was delivered extemporaneously and has been edited from the transcript to correct matters of grammar and formatting, and to add headings and full citations.)

Introduction

The plaintiff, Kara Joss, has filed an originating summons seeking the extension of a caveat she lodged over a property in Leaside Way Spearwood, (the Property) pursuant to s 138C of the Transfer of Land Act 1893 (WA) (TLA). Ms Joss appears in person.
The first defendant, Ngairi Beamish, is the registered proprietor of the Property and also appears in person by way of audio link to Queensland, where she resides.
The second defendant, the Registrar of Titles, has not played a role in these proceedings.
The matter first came before me on 28 May 2025. At that hearing, I heard from both parties, and both parties wished to attempt to resolve the matter between them. Further, from what I could ascertain from Ms Beamish, there was not necessarily any dispute as to the underlying basis upon which the Property was purchased and the plan to renovate and subdivide the Property.
However, Ms Beamish did take issue with some of the details, especially as to what occurred after the purchase. Ultimately, the position reached at that hearing was that I was satisfied that it was appropriate to extend the caveat for a short period to allow the parties time to attempt to resolve the matter and to list the matter for hearing on 16 June 2025 at which either the terms of the resolution could be considered or I could consider whether any further extension of the caveat should take place.
I also made orders for Ms Beamish to file and serve any affidavit evidence she wished to rely on, especially as to prejudice.
On 16 June 2025, the parties informed me that they had not yet settled the matter, but had a private mediation scheduled to occur in the following week. I therefore allowed a further adjournment to 3 July 2025, to enable that mediation to take place. I also ordered Ms Beamish to file a further affidavit attaching a copy of documents or correspondence regarding a $30,000 from the National Australia Bank (NAB) referred to in her affidavit filed to date.
The matter has now returned to court and unfortunately the parties have been unable to resolve the matter at private mediation, although I of course encouraged them to continue to attempt to do so.

Legal principles

The legal principles regarding extensions of caveats are well known and I do not need to repeat those in detail.
By way of summary, under s 137 of the TLA, a person claiming any estate or interest in land under the operation of the TLA may lodge a caveat with the Registrar. The purpose of a caveat against dealings is to operate as an injunction to the Registrar to prevent registration of dealings forbidden by the caveat until notice is given to the caveator so that he or she has an opportunity to oppose such registration.[1]
[1] Leros Pty Ltd v Terara Pty Ltd [1992] HCA 22; (1992) 174 CLR 407, 419.
Section 138C(2) of the TLA provides for the Supreme Court's powers when a caveator applies to the Supreme Court for an order extending the operation of a caveat. Those powers include the power to make an order extending the operation of the caveat for such period as the court specifies and such other orders as the court thinks fit.
The principles applicable to an application to extend a caveat are well settled and were summarised in Bashford v Bashford,[2] and in Bride v Registrar of Titles[3] and have been applied in numerous decisions of this court. There is no need to restate these principles in full here.
[2] Bashford v Bashford [2008] WASC 138 [42] - [50].
[3] Bride v The Registrar of Titles [2015] WASC 11 [12] ‑ [16].
Essentially, there are two questions for determination:
(a)First, has the caveator demonstrated that their claim has or may have substance or, as it is sometimes put, has the caveator established that there is a serious question to be tried in respect of the estate or interest in the land claimed?
(b)Second, does the balance of convenience favour the extension of the operation of the caveat?
The two questions are interrelated. The court must balance the injustice that might be suffered by the proprietor if the caveat were to remain against the injustice that might be suffered by the caveator if the caveat is removed.

Factual matters

In terms of evidence, I have before me:
(a)originating summons;
(b)two affidavits of Ms Joss sworn 26 May 2025 and 15 June 2025, and attachments;
(c)an undertaking as to damages in the usual form from Ms Joss;
(d)a certificate of urgency;
(e)a memorandum of conferral;
(f)two affidavits of Ms Beamish affirmed 12 June 2025 and 26 June 2025; and
(g)a character reference filed by Ms Beamish.
Both Ms Joss and Ms Beamish have had lawyers represent them previously, but those lawyers are not representing them at this hearing.
The basis of Ms Joss's claim to extend the caveat is as set out in her first affidavit. I will not repeat all the details here, but I will instead summarise the key facts.
Ms Joss and Ms Beamish have been close friends for around 26 years. Ms Joss moved to WA in November 2023 from the USA. Around the same time, Ms Beamish sold a unit she owned in Queensland. At this point in time, both Ms Joss and Ms Beamish were each looking to purchase a property. They then had discussions about buying a property together.
Ms Joss came across the Property in Spearwood and thought it was unique as they could subdivide the existing house that was on the Property into two separate dwellings and each end up owning their own property. Ultimately Ms Joss and Ms Beamish made an offer to purchase the Property. Ms Joss deposes that she made that offer on behalf of both of them.
Ms Joss deposes that it was her understanding at the time of making the offer that both their names would be on the title. The sale price for the Property was $671,000 and stamp duty was $29,000.
Ms Joss deposes that she contributed $10,000 to the purchase, which was the deposit, and that she also gave $7,000 cash to Ms Beamish. Ms Beamish contributed the balance of the purchase price, comprising:
(1)$273,000 (the NAB loan facility); and
(2)$417,000 from the sale proceeds of her unit.
Ms Joss deposes that she and Ms Beamish then had various discussions as to how to handle finances going forward and agreed that:
(1)Ms Beamish would retain $50,000 in cash from the sale proceeds of the unit as a buffer;
(2)Ms Joss would use $100,000 cash to fund the subdivision; and
(3)Ms Joss would solely pay the mortgage, rates, and utilities until such a time that Ms Beamish could tenant her side of the Property, at which time they would split the bills.
Ms Joss deposes that it was always their intention to make a joint offer, but Ms Joss deposes that she was told by the real estate agent that they could not make the offer in joint names, as Ms Beamish was planning to transfer her existing loan facility with NAB to partly fund purchase price, NAB would only allow this if only Ms Beamish's name was on the title.
I do not have a copy of the offer and acceptance form.
After the offer was accepted but before settlement occurred, Ms Joss deposes that they drafted a document to reflect the agreement previously reached as between them as to how to handle finances going forward. That agreement is contained at attachment KLJ2 of Ms Joss's first affidavit.
It is not signed but in broad terms it outlines that they would revisit the agreement in 12 months' time, that they would attempt to subdivide the property and Ms Joss would fund this up to $100,000 which would come off her price. Ms Joss would pay various bills and whatever Ms Joss pays into the mortgage account, plus the insurance rates and water, etcetera, will come off her side of the property, which was estimated to be approximately $25,000 in 12 months. Ms Beamish agrees to sell Ms Joss her side of the property for approximately $737,000. This should leave approximately $226,000 that Ms Joss owes Ms Beamish after what she has already paid comes off the sale price. There are some further details being about the stages of the subdivision, including that they would apply for subdivision as soon as possible.
Ms Joss deposes that after settlement she incurred the following the following expenses in relation to the Property:
(1)$52,847 in renovation costs;
(2)$21,830 in mortgage repayments;
(3)$5,220 in insurance and rates;
(4)approximately $4,000 in utilities; and
(5)plus, further unspecified amounts money for various works, and organising and payment for all permits and architectural drawings for the subdivision.
Ms Joss deposes that she incurred all of the expenses referred to in her first affidavit and gave up her rental property to move into the Property based on the clear understanding from the representations made by Ms Beamish that they were co-owners of the Property irrespective of the fact that her name was not on the title.
It seems that from July 2024 things started to go wrong.
Ms Joss deposes that she was told by council that the subdivision was put on hold and that the council could not guarantee that any subdivision application would be successful and, according to Ms Joss, there were various difficulties with the renovations.
Ms Joss deposes that she and Ms Beamish had a conversation where they agreed to take steps to refinance and put Ms Joss's name on the title for the Property and draft an agreement that would allow each to live in the Property as if it were subdivided in accordance with the architectural drawings already obtained.
Ms Joss has attached to her first affidavit an agreement she drafted in this respect. However, while steps were taken to have this drawn up by a lawyer into a legal agreement, it was never finalised, and it is not clear if all of it was ever agreed to.
Ms Joss deposes that in December 2024 they engaged a mortgage broker with the intention of refinancing which would have the benefit of discharging the NAB mortgage and allowing Ms Joss's name to be on the title.
However, whilst there have been several attempts to do so, they all appear to have been unsuccessful. Ms Joss lodged the caveat on 18 December 2024 to protect her claimed interest in the property. The caveat is an absolute caveat and the interest claimed is as an equitable interest as co-owner of the fee simple.
In her affidavit affirmed 13 June 2025, Ms Beamish does not seriously contest, for present purposes only, Ms Joss's account of the proposal in relation to the purchase of the Property, or the steps that occurred when the Property was purchased or immediately thereafter.
Ms Beamish does state that there is much she disagrees with in relation to Ms Joss's affidavit - but for the purposes of this application, Ms Beamish only identifies a few key matters. These include that:
(1)Ms Joss was struggling financially prior to the Property being purchased and at first she was going to lend Ms Joss the money but then decided on the different course of action;
(2)Ms Beamish initially left the administrative side of the subdivision as well as project management to Ms Joss as when she did attempt to be more involved this would result in dynamics which she found intimidating;
(3)the updated agreement to proceed to a shared title was always under the condition that they would have legal advice and an official binding joint venture agreement;
(4)Ms Beamish does not agree that the subdivision is not possible. Ms Beamish deposes that she has spoken to an officer at the City of Cockburn who has indicated that it was not virtually impossible to get two titles on the block and that officer has outlined the steps that they must take; and
(5)Ms Beamish never suggested that she would sell the Property and believes there is no evidence or risk of her selling or that she has disputed Ms Joss's interest in the Property. In her second affidavit, Ms Beamish deposes that she has no intention of selling the Property without Ms Joss's agreement or otherwise.
Ms Beamish also goes on in her affidavit to depose that she opposes the extension of the caveat, because she is seeking to refinance her NAB loan and that the caveat is preventing this. Ms Beamish deposes that she wishes to increase the NAB mortgage by $30,000, and had applied to do so, so that she can contribute to the cost of the subdivision of the Property; pay medical expenses for her son; and may purchase a motor vehicle as her current car is no longer drivable and she needs it for her work.
Ms Beamish goes on to give evidence regarding the amount of equity in the Property and the effect on her if she is unable to finance the NAB loan. I will discuss this aspect of Ms Beamish's evidence later in my reasons.
Ms Beamish also deposes to the steps she has taken to resolve the matter, including allowing the caveat to be amended to a 'subject to claim caveat' and providing a letter to permit Ms Joss to re-register the caveat.

Whether the plaintiff's claim to an interest in the land has or may have substance

The onus lies on Ms Joss to establish that there is a serious question to be tried as to whether a caveatable interest exists. The claim must concern a proprietary interest in land.
I consider that the affidavit evidence before me raises a serious question to be tried as to whether a caveatable interest exists. The affidavit evidence alleges that the Property was at all times purchased by Ms Beamish on both her behalf and also Ms Joss's behalf.
The affidavit evidence raises a serious question as to whether Ms Beamish holds the fee simple on some form of constructive or resulting trust, whether by virtue of an oral agreement or as part of some form of joint endeavour that has now broken down.
The affidavit evidence before me does not appear to indicate that Ms Beamish disputes that it was intended to purchase the Property for the benefit of both herself and Ms Joss, and that the Property would then be renovated and subdivided, with each keeping one subdivided part of the Property.
I am therefore satisfied that Ms Joss has established that her claim has or may have substance and that there is a serious question to be tried in respect of the estate or interest in the land claimed.
For the avoidance of doubt, my conclusions in regard to Ms Joss's claim as a co-owner of the fee simple are preliminary conclusions, reached only for the purposes of considering the caveat extension application and do not represent final findings.

Balance of convenience

Whilst I am satisfied that Ms Joss has established a serious question to be tried in relation to the caveat, it is also necessary to consider the balance of convenience.
Ms Joss seeks to have the caveat extended to protect her claimed interest in the Property. As Ms Joss is not on the title to the Property, Ms Joss says the caveat is her only way of protecting her interest, pending resolution of the matter.
Ms Joss says that she is concerned that if the caveat is removed, Ms Beamish may take steps to sell the Property before Ms Joss is able to seek a declaration in relation to her interest in the Property. Ms Joss relies on the fact that Ms Beamish has made enquiries as to the value of the Property; that Ms Beamish is in significant financial distress; the difficulties in subdividing the Property; that Ms Beamish lives in Queensland and the Property is in Western Australia; and the various emails annexed to her first affidavit as being matters which she says provide Ms Beamish with substantial reasons to sell the Property before Ms Joss's interest is recognised.
Ms Beamish in her first affidavit deposes that she has never suggested she would sell the Property; that she does not intend to sell the Property as the rent she receives from her tenant is currently her main source of income; and that she has always been willing to negotiate in order to reach a mutually satisfactory outcome. In her second affidavit, Ms Beamish deposes that she has no intention to sell the Property without Ms Joss's agreement or otherwise.
Ms Joss in her affidavit evidence expresses concern that Ms Beamish could sell the Property based on text and email messages. Having reviewed those messages, it is not clear to me that they indicate that Ms Beamish has or had an intention to sell the Property prior to the subdivision being completed. There is no other evidence before me that Ms Beamish does intend to sell the Property at present.
The affidavit evidence before me indicates that Ms Beamish wishes to have the caveat removed so she can refinance so as to contribute towards the subdivision of the Property; pay medical expenses for her son; and purchase a motor vehicle. Ms Beamish has deposed that her application for refinance to NAB is for the amount of $30,000. The NAB application and the letter of approval are contained in Ms Beamish's second affidavit.
Ms Beamish estimates the value of the Property at $790,000 and attaches a current CoreLogic Automated valuation to that effect. It is not clear precisely what the valuation would be of the Property in its current state of renovation, but it was purchased for $671,000.
Ms Beamish deposes that the current balance of the NAB mortgage is $266,077.24. I do not have before me any documents to this effect, but the amount is consistent with what Ms Joss has deposed to in her first affidavit.
Ms Beamish therefore estimates that there is at least $523,922.76 equity in the Property. I pause here to note that this figure is calculated by assuming a current value of $790,000. If the purchase price of $671,000 is used, the equity is approximately $404,922.
Ms Beamish deposes that an increase in the NAB mortgage of $30,000 would not, in those circumstances, prejudice any interest Ms Joss has in the Property. On the other hand, she will be prejudiced if she cannot increase her mortgage as she will be unable to afford to obtain a personal loan, due to her current financial position and income - the details of which are contained in her first affidavit. Further, Ms Beamish deposes that without the loan she will be unable to contribute additional funds to the subdivision or purchase a new car or assist her son with his medical expenses.
Ms Joss opposes allowing the increase in the home loan as it would reduce her equity in the Property.
In all the circumstances, I am satisfied that the balance of convenience favours removal of the caveat to enable Ms Beamish to refinance her loan by NAB in the amount of $30,000, subject to various conditions which I will detail, including that an order be made under s 138D of the TLA that Ms Joss has leave to file a fresh caveat once the refinance application is finalised.

I consider that the prejudice that Ms Joss will suffer if the caveat is temporarily removed is outweighed by the prejudice that Ms Beamish will suffer if she cannot refinance her loan with the NAB.
In reaching this conclusion, I have had regard to the facts that:
(1)Ms Joss's case cannot be described as tenuous or weak. It is reasonably arguable;
(2)interlocutory removal of a caveat will be unusual where an arguable case as to the existence of a caveatable interest has been demonstrated, as is the case here. That is because the purpose of a caveat is the protection of a proprietary interest and removal of the caveat will, in many cases, have the effect of destroying the benefit of the proprietary interest claimed in the caveat; and
(3)Ms Joss has provided an undertaking as to damages in the usual form.
However, notwithstanding these matters, I consider the prejudice that Ms Beamish will suffer if she is unable to refinance subject to the various conditions to be greater.
Further, I consider that given the amount of equity in the Property, an increase in the NAB loan by $30,000, will not materially prejudice Ms Joss's interest in the Property. In reaching this conclusion, I have assumed (without deciding) that Ms Joss is successful in a future substantive action vindicating her claim to an interest in the Property. Whilst the precise extent of the interest held by each of Ms Beamish and Ms Joss is unclear - given the extent of Ms Beamish's contributions to the purchase price, and the present extent of Ms Joss's contributions to the subdivision, I consider it unlikely that the proposed increase in the NAB loan will materially impact and therefore materially prejudice Ms Joss's claimed interest in the Property.
I also consider that any prejudice to Ms Joss can be addressed by making an order, pursuant to s 138D of the TLA, that Ms Joss be entitled to file a fresh caveat once the NAB loan has been refinanced, or within a reasonable period of time after that was due to occur. This will enable both Ms Beamish to obtain the refinancing, and also Ms Joss to again have security for her claimed interest in the Property. I will also order that Ms Beamish pay Ms Joss one half of the Landgate fees charged upon the filing this fresh caveat.
I also consider that any prejudice to Ms Joss can be addressed by making an order that Ms Beamish is restrained from selling the Property, or otherwise dealing with the Property, save in respect of the NAB refinance application, whilst the caveat is removed. I observe that a failure to comply with this order may constitute a contempt of court and is a very serious matter.
Further, I observe that Ms Joss has not yet commenced any substantive action in relation to her claim for an interest in the Property. That is because the parties have been attempting to resolve the matter privately. Ms Joss acknowledges that will need to occur. In these circumstances, I consider it to be appropriate to make an order requiring Ms Joss to commence an action to substantiate her claimed interest in the Property within a period of 21 days.
Finally, I observe that the caveat is expressed to be in the form of an absolute caveat. Ms Beamish has raised the question as to whether that should be a 'subject to claim' caveat. I accept that Ms Joss's evidence supports a conclusion of reasonable prospects in relation to her having an equitable interest in some form of joint ownership or tenancy. It is not suggested in the evidence before me that Ms Joss ought to be the sole owner of the Property. In these circumstances, the appropriate form of caveat is a 'subject to claim caveat'.
It is not possible on the evidence before me to determine the extent of that joint ownership or tenancy, and it is not appropriate to attempt to resolve this issue in the context of the present application.
Therefore, I will order that Ms Joss has leave to file a fresh caveat in substantially the same form as the current caveat, save that the reference to the caveat ought be a 'subject to claim' caveat. Such an order being consistent with the powers of the court to amend a caveat.[4]
[4] Palazzo Homes Pty Ltd v Goh [2010] WASC 407 [14].

Orders

I will therefore make the following orders:
1.The operation of Caveat Q257711 lodged on 18 December 2024 registered against the land described as [Redacted] Spearwood WA 6163, being whole of the land comprised in Certificate of Title Volume 1389 Folio 997 (the Property) do lapse at midnight on 3 July 2025.
2.The first defendant is to advise the plaintiff in writing within 24 hours of the National Australia Bank finalising her application for a loan of $30,000 made on 8 May 2025.
3.After receiving notice in writing from the first defendant in accordance with order 2 of these orders, the plaintiff has leave, pursuant to s 138D of the Transfer of Land Act 1893 (WA), to lodge a fresh caveat in the same terms as caveat Q257711 in relation to the Property, save for deleting the words 'absolute' and substituting the words 'unless subject to the claim of the caveator'.
4.The first defendant is to pay the plaintiff one half of the fees charged by Landgate for filing the fresh caveat referred to in order 3 of these orders.
5.If the plaintiff has not received notice in writing from the first defendant in accordance with order 2 of these orders by 17 July 2025, the plaintiff has liberty to apply to the court for further orders.
6.Until further order of the court, the first defendant is prohibited from selling the Property or otherwise dealing with the Property or otherwise registering any other dealings on the title for the Property except for the dealing referred to in order 7 of these orders.
7.The first defendant is permitted to deal with the Property for the purposes of her application for a loan of $30,000 from the National Australia Bank made on 8 May 2025.
8.The plaintiff shall, within 21 days of the making of these orders, commence an action in this court, against the first defendant (and any other necessary parties) seeking a declaration of the interest the plaintiff claims in relation to the Property and any related relief.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
HY
Associate to the Hon Justice Seaward
24 JULY 2025