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King v Barrett

King v Barrett

Case [2023] WASC 234 28 June 2023

Admissibility of Evidence

Property Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   KING -v- BARRETT [2023] WASC 234
CORAM:   ARCHER J
HEARD:   19 JUNE 2023
DELIVERED          :   28 JUNE 2023
FILE NO/S:   CIV 1432 of 2023
BETWEEN:   MARGOT LOUISE KING
FRANCO FORTIS
Applicants
AND
OANA ANCUTA BARRETT
GARETH JOHN BARRETT
First Respondents
THE REGISTRAR OF TITLES
Second Respondent

Catchwords:

Caveat extension - Equitable lien - Payments to project manager for agreed variations to development - Contract to purchase terminated

Legislation:

Transfer of Land Act 1893 (WA), s 138C

Result:

Caveat extended

Category: B

Representation:

Counsel:

Applicants	:	R R Joseph
First Respondents	:	J A Robertson
Second Respondent	:	No appearance

Solicitors:

Applicants	:	Solomon Brothers
First Respondents	:	Williams & Hughes
Second Respondent	:	Not applicable

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

Bashford v Bashford [2008] WASC 138
Bateson v Jones [2013] WASC 8
Boccamazzo v Kangaroo Corner Farm Pty Ltd [2020] WASC 234
Bride v The Registrar of Titles [2015] WASC 11
Hewett v Court (1983) 149 CLR 639
Lavery v R & I Bank of Western Australia Ltd (Unreported, WASCA, Library No 950468, 7 September 1995)
Perron Investments Pty Ltd v Tim Davies Landscaping Pty Ltd [2009] WASCA 171
Pindan Pty Ltd v Property Nominees Pty Ltd (2006) ANZ ConvR 430; [2006] WASC 91
Willmott Growers Group Inc v Willmott Forests Limited (Receivers and Managers Appointed) (In Liquidation) [2013] HCA 51
Zorostar Pty Ltd v Arian Investments Pty Ltd [2016] WASC 348

ARCHER J:

Introduction

The applicants (Buyers) apply for an order extending the operation of a caveat over property owned by the first respondents (Sellers).
The Sellers are the registered proprietors of 18 Cowper Road, Sorrento, Western Australia, more particularly described as Lot 1 on Strata Plan 83913 being the whole of the land the subject of Certificate of Title Volume 4008 Folio 205 (Property).
On 13 March 2022, the Buyers entered into a contract for the purchase of the Property from the Sellers (Contract).[1] The Contract provided for the construction of a residential dwelling on the Property prior to settlement.
[1] Affidavit of Margot Louise King filed 2 May 2023 (First King Affidavit) [5] and Attachment MLK‑4.
The construction of the building was project managed by Projective DM Pty Ltd (Projective DM). The Sellers operate and control Projective DM and are its only directors and shareholders.[2]
[2] Affidavit of Gareth John Barrett filed 18 May 2023 (Barrett Affidavit) [23] and the First King Affidavit Attachment MLK‑5.
The Contract set out a process by which variations to the development could be made. Following that process, the Buyers sought and received the Sellers' approval for a number of variations. The Buyers ultimately paid $90,873.79 to the project manager (Variation Payments) for the approved variations (the Variations).[3]
[3] First King Affidavit [8] ‑ [9] and Attachments MLK‑6, MLK‑7 and MLK‑8.
On 26 July 2022, the Buyers and Sellers exchanged multiple emails regarding the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading King v Barrett

Details

AGLC: King v Barrett [2023] WASC 234
Case: [2023] WASC 234
Decision Date

CaseChat Overview and Summary

In the case of King v Barrett, the applicants, Margot Louise King and Franco Fortisa, sought an extension of a caveat lodged over a property owned by the respondents, Anca Ancuta Barrett and Gareth John Barrett. The applicants claim to have an equitable lien over the property arising from payments made for variations to the development of the property, which were agreed upon by the parties. The court was required to decide whether the applicants had shown that their claim had or may have substance and whether the balance of convenience favoured the retention of the caveat.

The court found that the applicants had demonstrated that there was a serious question to be tried as to whether a caveatable interest existed. The applicants alleged that they had terminated the contract of sale for the property, and the respondents did not contest this. The applicants argued that they had an equitable lien arising from the variation payments, which was a caveatable interest. The court accepted that the applicants had shown that there was a serious question to be tried as to whether they had a proprietary interest in the property.

The court also found that the balance of convenience favoured the retention of the caveat. The applicants' case for relief at trial appeared to be relatively strong, and the failure to extend the caveat would have the effect of destroying the protection the applicants had in relation to the variation payments. The court considered that any prejudice to the respondents could be reduced by amending the caveat to specify the extent of the interest claimed in dollar terms. The court proposed to order that the operation of the caveat be extended, subject to the amendment of the caveat and the commencement of substantive proceedings.

The final orders of the court were that the operation of the caveat be extended until the substantive proceedings were instituted, subject to the amendment of the caveat to specify the extent of the interest claimed in dollar terms. The respondents were ordered to pay the applicants' costs of the application for the extension of the caveat.

Orders