KWS Capital Pty Ltd v Love
[2013] WASC 294
•8 AUGUST 2013
KWS CAPITAL PTY LTD -v- LOVE [2013] WASC 294
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 294 | |
| Case No: | CIV:2213/2013 | 7 AUGUST 2013 | |
| Coram: | EDELMAN J | 8/08/13 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | KWS CAPITAL PTY LTD ROSS MAITLAND LOVE REGISTRAR OF TITLES |
Catchwords: | Real property Caveats Application to extend operation of caveat Alleged charge over interest in land arising from fee agreement Construction of fee agreement Whether claim has or may have substance Balance of convenience |
Legislation: | Transfer of Land Act 1893 (WA), s 137 and s 138C |
Case References: | Avco Financial Services Ltd v White [1977] VR 561 Bashford v Bashford [2008] WASC 138 Bateson v Jones [2013] WASC 8 Composite Buyers Ltd v Soong (1995) 38 NSWLR 286 Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42 Davies v Davies [No 2] [2010] WASCA 151 Di Dio Nominees Pfy Ltd v Brian Mark Real Estate Pty Ltd [1992] 2 VR 732 Heritage Properties (No 3) Pty Ltd v Coles Supermarkets Australia Pty Ltd (1993) Q Conv R 54-448 Hillas & Co Ltd v Arcos Ltd [1932] 1 All ER 494 Hoon v Westpoint Management Ltd [2011] WASC 239 Industrial Progress Corporation Pty Ltd v Wilson [2013] WASC 225 Jandric v Jandric [1999] WASC 22 Jireh International Pty Ltd t/as Gloria Jean's Coffee v Western Exports Services Inc [2011] NSWCA 137 Love v Brien [2012] WASC 457 McCann v Switzerland Insurance Australia Ltd [2000] HCA 65; (2000) 203 CLR 579 MLW Technology Pty Ltd v May [2005] VSCA 29 Paton v Hynes [2011] WASC 106 Porter v McDonald [1984] WAR 271 Thorpe v Sizer Developments Pty Ltd & Anor [2006] WASC 151 Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd [1968] HCA 8; (1968) 118 CLR 429 Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45; (2011) 86 ALJR 1 Wildgum Nominees Pty Ltd v Land Alliance Pty Ltd [2009] WASC 244 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
ROSS MAITLAND LOVE
First Defendant
REGISTRAR OF TITLES
Second Defendant
Catchwords:
Real property - Caveats - Application to extend operation of caveat - Alleged charge over interest in land arising from fee agreement - Construction of fee agreement - Whether claim has or may have substance - Balance of convenience
Legislation:
Transfer of Land Act 1893 (WA), s 137 and s 138C
Result:
Application dismissed
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
Case(s) referred to in judgment(s):
Avco Financial Services Ltd v White [1977] VR 561
Bashford v Bashford [2008] WASC 138
Bateson v Jones [2013] WASC 8
Composite Buyers Ltd v Soong (1995) 38 NSWLR 286
Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42
Davies v Davies [No 2] [2010] WASCA 151
Di Dio Nominees Pfy Ltd v Brian Mark Real Estate Pty Ltd [1992] 2 VR 732
Heritage Properties (No 3) Pty Ltd v Coles Supermarkets Australia Pty Ltd (1993) Q Conv R 54-448
Hillas & Co Ltd v Arcos Ltd [1932] 1 All ER 494
Hoon v Westpoint Management Ltd [2011] WASC 239
Industrial Progress Corporation Pty Ltd v Wilson [2013] WASC 225
Jandric v Jandric [1999] WASC 22
Jireh International Pty Ltd t/as Gloria Jean's Coffee v Western Exports Services Inc [2011] NSWCA 137
Love v Brien [2012] WASC 457
McCann v Switzerland Insurance Australia Ltd [2000] HCA 65; (2000) 203 CLR 579
MLW Technology Pty Ltd v May [2005] VSCA 29
Paton v Hynes [2011] WASC 106
Porter v McDonald [1984] WAR 271
Thorpe v Sizer Developments Pty Ltd & Anor [2006] WASC 151
Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd [1968] HCA 8; (1968) 118 CLR 429
Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45; (2011) 86 ALJR 1
Wildgum Nominees Pty Ltd v Land Alliance Pty Ltd [2009] WASC 244
- EDELMAN J:
Introduction
1 This is an application by KWS Capital, brought by originating summons, for orders extending the 'operation of caveat number M315426 registered by [KWS Capital] against [land described in submissions as the Scarborough Beach Property]'.
2 The submissions focussed heavily upon whether there was any substance to the claim that KWS Capital asserted to a charge over the Scarborough Beach Property. The issue involves a question of construction of a Structured Fee Agreement between KWS Capital and Mr Love. KWS Capital asserts that the proper construction of that agreement means that Mr Love owes it a fee of $154,000 for finance which KWS Capital says was approved but which, it is common ground, was never advanced. The fee is said to have been secured by a charge over three of Mr Love's properties.
3 There are real weaknesses in the construction proposed by KWS Capital. There is also possible prejudice to Mr Love from the existence of the caveat over the Scarborough Beach Property. The application by KWS Capital seeks only to extend the operation of the caveat in relation to that property although two other properties subject to that caveat are likely to provide more than adequate security for its asserted charge. These reasons, in combination, require the application to be dismissed on the balance of convenience.
4 For the reasons below the application is dismissed.
The factual background in outline
5 A number of the facts provided in affidavit evidence were in dispute. I set out the facts below with the primary focus on those facts relied upon by KWS Capital. In an application for extension of a caveat it is not appropriate to resolve conflicts of evidence on affidavit.1
6 Two affidavits sworn by Mr Apostolakos were filed on behalf of KWS Capital.2 Mr Love also filed two affidavits.3 Mr Love's second affidavit was prepared during a short interval in submissions. It was read to the Court without objection. Counsel for Mr Love undertook to file the written affidavit by the next morning, prior to my delivery of reasons.
7 Mr Apostolakos deposes to the following background facts in relation to this application.
8 KWS Capital is a business involved in mortgage funding and lending.
9 The first defendant, Mr Love, is the registered proprietor of three properties. They were described as the Scarborough Beach Property, the Wangara Property and the City Beach Property.
10 Mr Apostolakos is the commercial manager of KWS Capital. He says, although Mr Love disputes, that on 28 December 2012, Mr Love instructed KWS Capital to procure funds for the refinance of
(i) the existing first mortgage and a caveat on the Wangara Property, and
(ii) the second mortgages on the City Beach Property and the Scarborough Beach Property.
11 Mr Love indicated that the total finance required was approximately $4,600,000.
12 On 1 February 2013, acting on behalf of Mr Love, KWS Capital obtained an offer of the lesser of
(i) $4,600,000 finance, or
(ii) 65% of the current market valuation of the Wangara Security property. The offer was from Balanced Securities Limited on various terms and conditions.
13 There is dispute about why this finance was not accepted.
14 Mr Apostolakos says that after this finance had been arranged with Balanced Securities, Mr Love told KWS Capital that the existing first registered mortgages on the City Beach Property and the Scarborough Beach Property were also required to be discharged as part of the refinance transaction.
15 Mr Love says, and it appears from the documentary evidence, that Balanced Securities required a Deed of Priority between Balanced Securities and the first mortgagees of the City Beach Property and the Scarborough Beach Property.
16 Mr Love also says that he was unable to obtain that Deed of Priority and that he was advised to borrow an amount which was sufficient to pay out the mortgages on his three properties. Mr Love says that he communicated this to Mr Apostolakos.
17 Mr Apostolakos says that Mr Love subsequently requested KWS Capital to procure a loan approval to pay out the existing mortgages on the Wangara Property, the City Beach Property and the Scarborough Beach Property, and that Mr Love requested KWS Capital to procure finance of $6,845,000 for this refinancing. Mr Love generally denies these matters.
18 Around 1 March 2013, Mr Apostolakos faxed to Mr Love two documents. The first was a letter of offer to Mr Love from Balanced Securities. The letter said that Balanced Securities was 'prepared to lend ... funds upon the following terms and conditions'. The principal sum was described as follows:
$6,645,000 or 55% of the current market valuation of the Properties detailed below (exclusive of GST) commissioned by us, whichever is the lesser.
19 The terms and conditions are discussed in further detail below. One of the conditions was obtaining a first registered mortgage over the Wangara Property, the City Beach Property and the Scarborough Beach Property.
20 The second document can be described as a Structuring Fee Agreement. I describe that document in detail below. The essence of this application for extension of the caveat in relation to the Scarborough Beach Property concerned the construction of the Structuring Fee Agreement.
21 There is dispute between Mr Apostolakos and Mr Love about what Mr Love was subsequently told and about subsequent negotiations. But it is clear that no funds were advanced by Balanced Securities.
22 Mr Love says that the total which he required to clear existing encumbrances in relation to the three properties was as follows:
(i) $4,520,000 in relation to first mortgages over the three properties.
(ii) $550,000 on second mortgages on the Scarborough Beach Property and the City Beach Property.
(iii) $560,000 under a court order.
23 Although Mr Love does not specify the property to which the court order relates, the certificate of title for the City Beach Property shows a caveat by Mr Brien and refers to a Property (Seizure and Sale) Order in CIV 2026 of 2012 which is the matter of Love v Brien.4
24 Mr Love says that the total of the amounts in (i) to (iii) above, $5,630,000, was the amount required to clear the existing encumbrances on the titles to the three properties.
25 Mr Apostolakos says that he told Mr Love that Balanced Securities was only prepared to lend Mr Love the amount of 55% of the combined valuations for the properties and that this amount was $5.555 million. This conversation is disputed. It does not establish the truth of any particular amount that Balanced Securities was willing to lend. But it is clear that the amount which Balanced Securities was willing to lend on the terms and conditions of its letter of offer was less than the amount necessary to discharge the first registered mortgages over the three properties.
26 In an email on 3 April 2013 from the General Manager of Balanced Securities to Mr Apostolakos, the General Manager referred to the current market value of the Scarborough Beach Property as $1.450 million and the current market value of the City Beach Property as $1.9 million. He said 'I am yet to run these numbers formally but looking at the current debts I expect there will be no way for this deal to be able to progress. If only Borrowers were more realistic re asset values we would save a lot of time'.
27 On 20 June 2013, KWS Capital lodged a caveat in respect of three properties, one of which was the Scarborough Beach Property. That property is Lot 2 on the Survey Strata Plan 42466 and being the whole of the land comprised in Certificate of Title volume 2528 folio 95.5 The estate or interest in the Scarborough Beach Property was said to arise by reason of
An agreement dated the 1st day of March 2013 made between the registered proprietor and caveator wherein the registered proprietor charged its estate and interest in favour of the caveator.
28 On 22 July 2013, Bendigo Bank offered to lend Mr Love $7.905 million for two years. Mr Love accepted that offer. Mortgage documents for the proposed advance were signed on 29 July 2013.
29 On 6 August 2013 at about 5:45 pm a Mr Montegna, an employee of the Bendigo Bank, told Mr Love that the offer was withdrawn because the caveat lodged by KWS Capital had not been withdrawn. The withdrawal of the caveat was a condition of the loan. The offer was also withdrawn because of a claim against Mr Love by the Australian Taxation Office. Mr Love says that he is meeting with Mr Montegna today 8 August 2013 in an attempt to persuade him to reinstate the offer.
The legal principles applicable to the extension of caveats
30 The legal principles in relation to extension of caveats are well known. I recite them briefly below.
31 Section 137 of the Transfer of Land Act 1893 (WA) enables a beneficiary or other person claiming an estate or interest in land to lodge a caveat. Section 138C(2) provides for the Supreme Court's powers when a caveator applies to the Supreme Court for an order extending the operation of a caveat, as follows:
(2) On the hearing of an application under subsection (1), the Supreme Court -
(a) if satisfied that the caveator's claim has or may have substance -
(i) may make an order extending the operation of the caveat for such period as is specified in the order; or
(ii) may make an order extending the operation of the caveat until the further order of the court; or
(iii) may make such other orders as it thinks fit concerning the caveat or the land in respect of which the caveat was lodged;
and
(b) if not satisfied that the caveator's claim has or may have substance, shall dismiss the application; and
(c) may make such ancillary orders in relation to the application as it thinks fit.
(1) whether the caveator's claim in respect of the estate or interest in land 'has or may have substance', and
(2) whether the balance of convenience favours the retention of the caveat and the appropriate orders to be made.
33 The first issue is whether the caveator's claim in respect of the estate or interest in land 'has or may have substance'. This is sometimes expressed as whether the caveator can show that there is a serious question to be tried, or whether the caveator can prove a prima facie case.6
34 The requirement that the caveator's claim of substance be in respect of the estate or interest in land has been held to mean that the claim must concern a 'proprietary interest' in land.7
35 If the caveator's claim in respect of the estate or interest in land 'has or may have substance' then the caveat may be extended. The exercise of the discretion to extend has sometimes been described as the 'balance of convenience'.
36 The issues of (1) whether the claim 'has or may have substance' and (2) whether the balance of convenience favours the extension of the caveat are not independent. Even if a claim has or may have substance, the caveat might not be extended having regard to factors including the apparent strength or weakness of the claim.8
The issue in this application
37 It has been held on numerous occasions that a charge over land is an estate or interest in land within the meaning of s 137.9 The issue on this application concerns whether the strength of the claim by KWS Capital for a charge is sufficient to maintain the caveat in all the circumstances, including the balance of convenience.
38 It is necessary to examine the basis upon which KWS Capital submits that it is entitled to a charge.
The Loan Offer
39 The loan offer from Balanced Securities was for a principal amount as follows:
Principal $6,845,000.00 or 55% of the current market valuation of the Properties detailed below (exclusive of GST) commissioned by us whichever is the lesser.
40 There was also requirement in the loan offer for a first registered mortgage over Mr Love's three properties.
41 Special condition 1 of the loan offer then provided as follows:
Subject to receipt of the Lender[']s formal valuation the allocation of the Principal under this offer is as follows:
(a) $5,275,000 to refinance the current mortgage debt on the Properties. This amount includes a $50,000 allowance to cover an increase in the debt currently owed. If the full amount of this component is not required then the balance will be added to the interest allowance in (e) below.
(b) $230,000 to meet costs, fees and expenses set out herein and any brokerage payable to your broker;
(c) $500,000 to provide for a court fund in order to secure the release of the existing caveat on the Wangara Property lodged by the vendor of that property (see Special Condition 8 below);
(d) $150,000 to assist with the completion of the proposed 6 lot subdivision of the Wangara Property (subject to Special Conditions 2 and 5 below); and
(e) $690,000 being an interest capitalisation allowance that, subject to the terms and conditions below, will be used to service this facility.
42 A provision for Fees provided for four categories of fees including legal fees for the Transaction Documents; registration fees; an evaluation fee of $12,650, and 'a loan approval fee of 1.50% (plus GST) of the Principal agreed to be lent is payable at settlement of the loan proposed under this Letter of Offer or on demand if the matter does not proceed'.
The Structuring Fee Agreement
43 KWS Capital relies upon the Structuring Fee Agreement. KWS Capital says that Mr Love became liable to pay a structuring fee of $154,000 under this agreement. KWS Capital also relies upon a provision in the Structuring Fee Agreement by which Mr Love charged to KWS Capital his interest in properties including the Scarborough Beach Property.
44 The Structuring Fee Agreement contains the terms on the first page and Mr Love's signature on the second page.
45 The Structuring Fee Agreement is a document entitled 'Acceptance of Loan Conditions and Payment Authority'. It is addressed to KWS Capital. In it Mr Love says that he appoints KWS Capital
[a]nd its officers and each of them our agent for the purpose of negotiating for an Approval and Advance of a loan ('the Loan') from
Balanced Securities Limited
- on the following terms and conditions …
46 The terms and conditions are in two categories: 'Security Property' and 'Amount of Loan'.
47 The Structuring Fee Agreement conditions in relation to 'Security Property' are as follows:
Security Property: First Registered Mortgages over
(a) Industrial zoned land inc Rose Maitland Love located at –
19 Destiny Way
WANGARA WA 6065
Certificate of Title Reference
Volume 329 Folio 117a
(b) 3 & 3A Norbury Crescent
WANGARA 6065
Certificate of Title Reference
TBC
(c) 269a West Coast Highway
SCARBOROUGH 6019
Certificate of Title Reference
TBC
49 The Amount of Loan condition is as follows:
Amount of Loan $6,845000.00 or 55% of the current market valuation of security properties (exclusive of GST) commissioned by the Lender whichever is the lesser.
50 The Structuring Fee Agreement then provides that
Structuring fee payable to KWS Capital Pty Ltd for acting as agents and obtaining approval for the loan from the lender to the borrower:
$140,000.00 plus GST = $154,000.00.
51 The concluding paragraphs of the Structuring Fee Agreement provide as follows:
We irrevocably authorise the Lender to disperse the structuring fee of $154,000.00 (one hundred and fifty-four thousand dollars and zero cents) payable to KWS CAPITAL PTY LTD … for acting as agent when advancing the loan.
In consideration of the Lender approving the Loan to the Borrower, the Borrower hereby agrees to pay the structuring fee to KWS Capital Pty Ltd and hereby specifically charges their interest in the properties to secure payment of the structuring fees and costs to KWS Capital Pty Ltd.
Whether KWS Capital's claim has or may have substance
52 KWS Capital's claim to a charge focuses upon a literal construction of various paragraphs of the Structuring Fee Agreement. KWS Capital says that the agreement by Mr Love to pay the structuring fee, and to charge his properties, was in consideration of Balanced Securities approving the loan to Mr Love as provided in the final paragraph. KWS Capital also points to the statement that the structuring fee is payable to KWS Capital 'for acting as agents and obtaining approval for the loan' from Balanced Securities.
53 KWS Capital therefore submits that an advance of the loan was not required. KWS Capital also says that the purpose of the charge was to secure the payment of the structuring fee and costs in the event that the loan is not advanced.
54 KWS Capital did not address in submissions the fact that in the final sentence which refers to 'consideration of the Lender approving the Loan', the word 'Loan' is capitalised. The capitalised word is defined at the start of the Structuring Fee Agreement which refers to the purpose of the appointment as 'negotiating for an Approval and Advance of a loan (the 'Loan')'. The reference to 'Advance' militates against KWS Capital's construction, although there is some support for KWS Capital's construction in the word 'negotiating'.
55 Nor did KWS Capital address the fact that the sentence which refers to the structuring fee being made payable does not merely provide for 'obtaining approval' but also that the fee is payable for 'acting as agents'. The agency was for the purpose of negotiating approval and advance of a loan.
56 Mr Love has two submissions on construction.
57 First, Mr Love says that no loan was ever 'approved' because the terms and conditions attached to the loan turned out to be such that the money could never have been advanced. The lesser of the two amounts provided as the 'principal' was 55% of the current market valuation of the security properties. But this amount turned out to be less than would be sufficient to discharge the security term and condition which required first registered mortgages over the three properties. In effect, Mr Love's case is that an approval of a loan is an approval of money which the lender will be prepared to advance.
58 Secondly, and in the alternative, Mr Love says that the Structuring Fee Agreement, on its proper construction, required that the loan be both approved and advanced.
59 One matter which might support the second construction is the context of the Structuring Fee Agreement as a document which needs to be read together with the Loan Offer. The special conditions in the Loan Offer, as set out above, provide for allocation of an amount from the loan principal ($230,000) for matters including 'any brokerage payable to your broker'.
60 Another matter which might support this construction is the provision in the Structuring Fee Agreement that KWS Capital is appointed 'for the purpose of negotiating for an Approval and Advance of a loan' (emphasis added). On the other hand, as I have mentioned, the word 'negotiating' supports the literal construction of KWS Capital.
61 A third matter which might support this construction is the paragraph which immediately precedes the agreement by Mr Love to pay the structuring fee in consideration of the approval of the loan. That preceding paragraph provides for authority for Balanced Securities to disburse the structuring fee 'when advancing the loan' (emphasis added).
62 A fourth matter which might support this construction is the commercial context of the Structuring Fee Agreement. The agreement must be construed in a commercially sensible way,10 although consistently with the language of the contract.11 Mr Love argues that it is uncommercial to construe the Structuring Fee Agreement as involving an undertaking by him to pay the $154,000 fee irrespective of whether the funds are advanced to him or not.
63 If these submissions were accepted then it may be that the role of the charge was to secure KWS Capital's right to payment pending any delay between approval and advance of the loan, or in the event that it was not paid after drawdown of the advance.
64 It is neither necessary nor appropriate for me finally to determine this question of construction. I accept for the purposes of this application that KWS Capital's argument cannot be dismissed. It has some substance. But, for the reasons I have explained, there are real difficulties faced by KWS Capital. These weaknesses in the claim by KWS Capital affect the assessment of the balance of convenience. As I have explained, in considering whether a caveat should be extended the apparent strength or weakness of a claim can be taken into account.
Conclusion and the balance of convenience
65 KWS Capital has provided an undertaking as to damages. KWS Capital will be liable to Mr Love on that undertaking if Mr Love suffers loss as a result of KWS Capital maintaining its caveat and KWS Capital's charge turns out not to have foundation. Further, if KWS Capital's caveat over the three properties were removed then KWS Capital could suffer real prejudice. In circumstances in which there is a possibility (and I put it no higher than that) that KWS Capital could establish its claim at trial then the prejudice it could suffer would be the loss of the protection afforded by the caveat for its security.
66 It may be that if this application had concerned whether the caveat should be extended over all three properties then these considerations might have been decisive of some different result than dismissal, even taking into account the possible prejudice to Mr Love arising from the impediment that the caveat is providing (albeit together with his outstanding debt to the Australian Tax Office) to the refinancing which he is seeking.
67 But the caveat covers all three of Mr Love's properties. The notice under s 138B of the Transfer of Land Act 1893 (WA) requiring Mr Love to obtain a Supreme Court order to prevent the lapse of the caveat relates only to the Scarborough Beach Property. There are strong indications that KWS Capital's asserted charge over its claimed debt of $154,000 would be more than adequately protected by a caveat over the other two properties. On an 'as is' basis, the Wangara property was valued at $6,750,000 and the City Beach property was valued at $1,900,000. The combined amount is $8,650,000. Mr Love's evidence was that he required $5,630,000 to clear the encumbrances from all three properties, although I take into account the absence of any reference there to the Tanner caveat on the Wangara Property which was based on a claim under a charging provision in a letter of offer of finance.
68 In these circumstances, I do not consider that the caveat should be extended in relation to the Scarborough Beach Property. The application should be dismissed.
69 Section 138C(2)(c) provides for the power for this Court to make such ancillary orders in relation to the application as it thinks fit. I will hear from the parties concerning the orders which should be made in circumstances in which there is no application to remove a caveat over the Wangara or City Beach Properties.
Postscript
70 These reasons were drafted on the evening after yesterday's hearing. However, two matters occurred this morning which require postscript incorporation.
New evidence
71 The first matter concerns Mr Love's second affidavit. The contents of Mr Love's second affidavit concern his attempts to obtain a loan from Bendigo Bank and the impediment caused by the caveat to those attempts. As I have explained, Mr Metaxas, counsel for Mr Love, orally read the contents of the proposed affidavit at the hearing. He undertook to file the written affidavit the following morning. Counsel for KWS Capital did not object to this course.
72 Counsel for KWS Capital properly confirmed the absence of any objection when Mr Love's affidavit was subsequently filed this morning. But, as counsel for KWS Capital observed in that short note to the Court, the affidavit which was filed contained substantial differences from the contents read orally at the hearing. The filed affidavit introduced new matters concerning the detail of an Australian Tax Office assessment against Mr Love. Also an annexure to the affidavit was included containing detailed terms of a loan offer from Bendigo Bank. That annexure was not tendered nor was it referred to in oral submissions. No application to reopen had been made by counsel for Mr Love.
73 In the context of urgent applications there can sometimes be a change of circumstances following a hearing, or an important omission at the hearing, which requires redress. If this occurs then the proper manner of proceeding is to contact the legal representatives for the opposing side to explain the change in circumstances or omission which is said to necessitate provision of the new information to the Court. The Court can then be informed of the presence or absence of consent to a course of action such as reopening for the limited purpose of tendering new evidence. The other party will have fair notice and opportunity to respond if necessary.
74 The course adopted in this case was unfortunate. Mr Love's counsel did not make any application to reopen. Mr Love's counsel filed the affidavit without any explanation of the differences in content from what was read to the Court, why those differences had occurred, and why the different content should be taken into account without hearing from the other parties. Mr Love's counsel did not explain whether the differences in content had been drawn to the attention of the other parties. In these circumstances, I have not placed any weight on the additional matters contained within the affidavit.
A letter from Landgate
75 A letter was received this morning by the Court from the Registrar of Titles. In her letter, the Registrar explained that the Notice issued to KWS Capital by the Registrar erroneously referred only to the Scarborough Beach Property. By error, no reference had been made in the Notice to the other two properties which had also been the subject of the caveat: the Wangara Property or the City Beach Property. The letter explained that the application by Mr Love under s 138B(1) had been made in relation to all three properties.
76 The interim orders made by consent, pending the hearing of this matter, had extended the operation of caveat number M315426 generally and without reference to the three different certificates of title. But, as I have explained, the originating summons in this matter was brought only in relation to the operation of the caveat against the Scarborough Beach Property. The undertaking as to damages filed by KWS Capital related to that application only. And, for the reasons I have explained, that application must be dismissed.
77 It will be necessary to hear submissions concerning any further orders which should be made.
1Bashford v Bashford [2008] WASC 138 [48] (Beech J) citing Porter v McDonald [1984] WAR 271, 276 (Rowland J).
2 Affidavit of Mr Apostolakos sworn 2 August 2013; Affidavit of Mr Apostolakos sworn 7 August 2013.
3 Affidavit of Mr Love sworn 5 August 2013; Affidavit of Mr Apostolakos sworn 7 August 2013.
4Love v Brien [2012] WASC 457.
5 Affidavit of Mr Apostolakos sworn 2 August 2013, exhibit AA2.
6Bateson v Jones [2013] WASC 8 [18] (Pritchard J); Hoon v Westpoint Management Ltd[2011] WASC 239 [44] (Corboy J); Jandric v Jandric [1999] WASC 22 [5] (Commissioner Buss QC); Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42, 48 (Owen J).
7Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42, 50 (Owen J).
8Bashford v Bashford [2008] WASC 138 [104] (Beech J) citing Heritage Properties (No 3) Pty Ltd v Coles Supermarkets Australia Pty Ltd (1993) Q Conv R 54-448, 59424-59-425 (Fitzgerald P & Pincus JA); Wildgum Nominees Pty Ltd v Land Alliance Pty Ltd [2009] WASC 244 [71] (Murphy J); Davies v Davies [No 2] [2010] WASCA 151 [39] (Newnes JA & Murphy JA); Industrial Progress Corporation Pty Ltd v Wilson [2013] WASC 225 [22] (Beech J).
9Avco Financial Services Ltd v White [1977] VR 561, 563 - 564 (Gillard J); Composite Buyers Ltd v Soong (1995) 38 NSWLR 286, 288 (Hodgson J); Thorpe v Sizer Developments Pty Ltd & Anor [2006] WASC 151 [61] (Jenkins J); Paton v Hynes [2011] WASC 106 [4] (Sleight C).
10Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd [1968] HCA 8; (1968) 118 CLR 429, 437 (Barwick CJ); Hillas & Co Ltd v Arcos Ltd [1932] 1 All ER 494, 499 (Lord Tomlin), 503 - 504 (Lord Wright); Di Dio Nominees Pfy Ltd v Brian Mark Real Estate Pty Ltd [1992] 2 VR 732, 740 (Marks J); McCann v Switzerland Insurance Australia Ltd[2000] HCA 65; (2000) 203 CLR 579, 589 [22] (Gaudron J); MLW Technology Pty Ltd v May[2005] VSCA 29 [76] - [81] (Gillard AJA, Winneke P & Buchanan JA agreeing).
11Jireh International Pty Ltd t/as Gloria Jean's Coffee v Western Exports Services Inc [2011] NSWCA 137 [55] (Macfarlan JA) and Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45; (2011) 86 ALJR 1, 2 [1] (the Court).
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