KWS CAPITAL PTY LTD -v- LOVE [2013] WASC 294

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 294
Case No:	CIV:2213/2013	Heard:	7 AUGUST 2013
Coram:	EDELMAN J	Delivered:	8/08/13
No of pages:	17	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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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

CITATION : KWS CAPITAL PTY LTD -v- LOVE [2013] WASC 294 CORAM : EDELMAN J HEARD : 7 AUGUST 2013 DELIVERED : 8 AUGUST 2013 FILE NO/S : CIV 2213 of 2013 BETWEEN : KWS CAPITAL PTY LTD

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):

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: [2013] WASC 294
Decision Date: 8 AUGUST 2013

CaseChat Overview and Summary

KWS Capital Pty Ltd sought to extend the operation of a caveat it had entered over a property to prevent Love from proceeding with the sale of the property. Love had entered into a fee agreement with KWS Capital, and KWS Capital claimed that this agreement gave it a charge over Love's interest in the property. The dispute was before the Supreme Court of New South Wales.

The court needed to decide whether the fee agreement created a charge over Love's interest in the property, and if so, whether the claim had or may have substance, and whether the balance of convenience favoured extending the operation of the caveat. The court also needed to determine whether the fee agreement was in fact a contract for the sale and resale of the property, rather than a charge over Love's interest in the property.

The court found that the fee agreement was in fact a contract for the sale and resale of the property, rather than a charge over Love's interest in the property. The court held that the agreement did not create a charge over Love's interest in the property, and that the claim did not have or may have substance. The court also found that the balance of convenience did not favour extending the operation of the caveat. The court dismissed the application to extend the operation of the caveat.

The court's orders were that the application to extend the operation of the caveat was dismissed.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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