KWS Capital Pty Ltd v Love
[2013] WASC 294 (S)
•9 AUGUST 2013
KWS CAPITAL PTY LTD -v- LOVE [2013] WASC 294 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 294 (S) | |
| Case No: | CIV:2213/2013 | 9 AUGUST 2013 | |
| Coram: | EDELMAN J | 9/08/13 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Interim orders made | ||
| B | |||
| PDF Version |
| Parties: | KWS CAPITAL PTY LTD ROSS MAITLAND LOVE REGISTRAR OF TITLES |
Catchwords: | Real property – Caveats – Error in Notice issued by Registrar of Titles – Whether orders should be recalled – Interim orders pending filing of new application by the plaintiff |
Legislation: | Transfer of Land Act 1893 (WA), s 138B, s 138D |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
ROSS MAITLAND LOVE
First Defendant
REGISTRAR OF TITLES
Second Defendant
Catchwords:
Real property – Caveats – Error in Notice issued by Registrar of Titles – Whether orders should be recalled – Interim orders pending filing of new application by the plaintiff
Legislation:
Transfer of Land Act 1893 (WA), s 138B, s 138D
Result:
Interim orders made
Category: B
Representation:
Counsel:
Plaintiff : Mr J M Healy
First Defendant : Mr A Metaxas
Second Defendant : No appearance
Solicitors:
Plaintiff : Culshaw Miller
First Defendant : Metaxas & Hager
Second Defendant : No appearance
Nil
- These reasons were delivered orally at the conclusion of the hearing and have been edited from the notes made at delivery so that they can be provided urgently to the parties.
EDELMAN J:
Summary of the applications
1 Yesterday afternoon I delivered reasons for decision in this matter dismissing the application brought by originating summons to extend the operation of the caveat in relation to the Scarborough Beach Property with KWS Capital to pay the costs of Mr Love.
2 This morning there was an application to recall my orders on the basis that, as I explained in the postscript to my reasons, the application and originating summons may have been brought on a false premise which was that a Notice issued by the Registrar of Titles related only to the Scarborough Beach Property. I declined to recall my order dismissing the application. One of the reasons for doing so was that if the originating summons were brought on a false premise then this may have costs consequences, but as matters stand, I cannot see how this would have affected my conclusion that the originating summons in relation to the Scarborough Beach Property should be dismissed.
3 I allowed the application to reopen my orders as to costs. Counsel for KWS Capital had not been confronted with the argument, which was made this morning by counsel for Mr Love, that the Notice from the Registrar of Titles was not required to specify all three properties, and that by referring to the caveat number, the Notice applied to all three properties even though only the description of the Certificate of Title to which it referred was only the Scarborough Beach Property. Counsel for KWS Capital has indicated that costs, or a proportion of costs, of the application by originating summons will be sought from the Registrar of Titles.
4 Counsel for KWS Capital proposes to bring an application for a declaration that the Notice only has operation in relation to the Scarborough Beach Property and possibly ancillary applications and relief. As I have explained, the issue concerning the operation of the Notice is disputed. Counsel for Mr Love submits that this application for a declaration should be made in the proper form, filed, and served on the Registrar of Titles. I accept that this is the case, particularly in circumstances in which the Registrar of Titles wrote to the Court at the commencement of this action saying that her decision to abide by the decision of the Court was based on the assumptions that
1. No allegations or claims are made against the Registrar
2. No order as to costs is made against the Registrar
3. The Registrar is able to give effect to the terms of any Orders made by the Court
5 The remaining issue now is whether any interim orders should be made. It is necessary briefly to explain the background to the interim orders which I make.
Background
6 The background to this matter was as follows.
7 By Application M330540, Mr Love applied for the removal of the caveats which had been lodged over his three properties which I described as the Scarborough Beach Property, the City Beach Property and the Wangara Property.
8 Subsequent to that Application, the Registrar of Titles sent a Notice under s 138B of the Transfer of Land Act 1893 (WA) to KWS Capital. The Notice referred to Application M330540. It provided that there was a lapse date for the Caveat Number M315426 at midnight on 7 August 2013. The certificate of title described in the notice was the certificate of title of the Scarborough Beach Property only. There was no mention of the other two properties which were also covered by Caveat number M315426.
9 On 2 August 2013, KWS Capital filed an originating summons seeking extension of the operation of Caveat Number M315426 in relation to the Scarborough Beach Property.
10 On 5 August 2013, I made an order by consent extending the operation of caveat number M315426 until 4:00 pm on 9 August 2013. It is common ground, and I accept, that that order extended to all three properties.
11 The application to extend the caveat in relation to the Scarborough Beach Property was heard on 7 August 2013. It was dismissed, with reasons, on 8 August 2013.
12 As I explained in a postscript to my reasons, on 8 August 2013, the Registrar of Titles sent a letter to the Court concerning Application M330540 ('the Application'). The Registrar explained that the Notice sent to KWS Capital under s 138B of the Transfer of Land Act 1893 (WA)'contained an error in respect of the Certificates of Title the subject of the Application'. She explained that '[t]he Caveat encumbers three Certificates of Title, and the Application applied for notice to be sent in respect to all three Certificates of Title'. The letter confirmed that all three certificates of title are the subject of the Application, but explained that the 'Notice ... failed to refer to the following two Certificates of Title' which were the Wangara Property and the City Beach Property.
13 These facts appear to be uncontentious.
Conclusion
14 As I have explained, KWS Capital now proposes to bring an application for a declaration and ancillary orders and relief. In order to protect the rights of all parties, as far as possible, pending the hearing and determination of that application, interim orders should be made as follows:
1. Order 3 of the Orders made by the Hon. Justice Edelman on 8 August 2013 (plaintiff pay the first defendant's costs of the application, to be taxed if not agreed) be vacated.
2. The plaintiff file and serve any originating summons by 4pm on 9 August 2013 with any supporting affidavit to be filed and served by 4pm on 12 August 2013.
3. On the provision by the plaintiff of an undertaking as to damages in relation to Lot 4 on Diagram 30763, Volume 329 Folio 117A and Lot 72 on Plan 7575, Volume 1273 Folio 44, the operation of Caveat Number M315426 in relation to:
(i) Lot 4 on Diagram 30763, Volume 329 Folio 117A; and
(ii) Lot 72 on Plan 7575, Volume 1273 Folio 44
be extended until 4pm on 26 August 2013.
5. Costs of today be reserved.
15 A copy of these reasons will be provided today to the parties and to the Registrar of Titles. In the absence of agreement of the parties it will be necessary for a short hearing to make further programming directions concerning KWS Capital's proposed applications.
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