KIRFIELD LTD -v- FIRST TRADE CONSULTING PTY LTD [2005] WASC 82

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 82
Case No:	CIV:1111/2004	Heard:	22 & 28 APRIL 2005
Coram:	BLAXELL J	Delivered:	6/05/05
No of pages:	14	Judgment Part:	1 of 1
Result:	Application to extend operation of caveats refused Interlocutory injunction granted to restrain draw down on guarantee
Category:	B
PDF Version

Parties:	KIRFIELD LTD (ACN 069 557 053) FIRST TRADE CONSULTING PTY LTD (ACN 009 372 169) GRD KIRFIELD LTD (ACN 069 557 053) FIRST TRADE CONSULTING PTY LTD (ACN 009 372 169)
Catchwords:	Caveats Application to extend operation of caveats Caveats securing payments to builder under building contract Prior first mortgage for debt exceeding the market value of properties caveated Agreement between proprietor and first mortgagee for first mortgage debt to be satisfied by sale of properties Whether caveats should be extended in these circumstances Building and engineering contracts Bankers guarantee securing performance of works Suspension of work by builder during defects liability period Failure to remedy defects Other claims and crossclaims between parties Whether proprietor should be restrained from drawing down on guarantee
Legislation:	Transfer of Land Act 1893 (WA), s 138B, s 138C
Case References:	American Cyanamid Co v Ethicon Ltd [1975] AC 396 Castlemaine Tooheys Ltd v State of South Australia (1986) 161 CLR 148 Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42 Halse v Embling, unreported; FCt SCt of WA; Library No 970734; 22 December 1997 Porter v McDonald & Registrar of Titles [1984] WAR 271 Barclay Mowlem Construction Ltd v Simon Engineering (Australia) Pty Ltd (1991) 23 NSWLR 451 Bomford v Barrett [2002] WASC 304 Eades v Reilly, unreported; SCt of WA; Library No 980675; 20 September 1998 Hewett v Court (1982) 46 ALR 87 Jandric v Jandric [1999] WASC 22 Lydon v Ryding [2002] WASC 308 Midland Brick Company Pty Ltd v Welsh [2002] WASC 248 Mott v Mount Edon Gold Mines (1994) 12 ACLC 319 Pearson Bridge (NSW) Pty Ltd v State Rail Authority of New South Wales (1982) 1 ACLR 81 Pindan Pty Ltd v Sunny's Redevelopment Pty Ltd & Anor [2001] WASC 104 Reed Construction Services Pty Ltd v Kheng Seng (Australia) Pty Ltd (1999) 15 BCL 158 Selvas Pty Ltd v Hansen & Yuncken (SA) Pty Ltd (1987) 6 ACLR 36 Transfield Pty Ltd v Fuller - F L Smidth (Pacific) Pty Ltd and Deutsche Bank AG, unreported; SCt of NSW; Library No 55010; 9 May 1997

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : KIRFIELD LTD -v- FIRST TRADE CONSULTING PTY LTD [2005] WASC 82 CORAM : BLAXELL J HEARD : 22 & 28 APRIL 2005 DELIVERED : 6 MAY 2005 FILE NO/S : CIV 1111 of 2004 BETWEEN : KIRFIELD LTD (ACN 069 557 053)

Applicant

AND

FIRST TRADE CONSULTING PTY LTD (ACN 009 372 169)

Respondent

FILE NO/S : CIV 1239 of 2005 BETWEEN : GRD KIRFIELD LTD (ACN 069 557 053)

Plaintiff

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2005] WASC 82
Decision Date

CaseChat Overview and Summary

The matter before the Supreme Court of Western Australia, Kirfield Ltd v First Trade Consulting Pty Ltd, involved two separate applications arising from a building dispute between the plaintiff, Kirfield Ltd, a builder, and the defendant, First Trade Consulting Pty Ltd, the proprietor. The first application sought an extension of the operation of three caveats lodged against the titles of six strata title apartments owned by the defendant. The second application sought an interlocutory injunction to restrain the defendant from drawing down on a bank guarantee provided by the Australia and New Zealand Banking Group Ltd. The court refused the first application and granted the second.

The court held that there was a serious question to be tried in respect of the plaintiff's claimed interest in the six strata title apartments. The court found that the plaintiff had a continuing second mortgage interest in the penthouse apartment and a charge over the remaining five apartments to secure the due and punctual payment of certain progress certificates and interest. However, the court found that the balance of convenience was overwhelmingly in favour of the defendant, and therefore, the caveats should not be extended.

Regarding the second application, the court found that there was a serious issue to be tried in respect of the defendant's entitlement to draw down on the bank guarantee. The court considered the relative strengths of the opposing cases and found that the balance of convenience favoured the maintenance of the status quo. The court granted an interlocutory injunction to restrain the defendant from drawing down on the bank guarantee.

Orders