Liu v 43 Stannard Pty Ltd - [2025] WASC 332

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   LIU -v- 43 STANNARD PTY LTD [2025] WASC 332
CORAM:   GETHING J
HEARD:   14 AUGUST 2025
DELIVERED          :   15 AUGUST 2025
FILE NO/S:   CIV 1913 of 2025
BETWEEN:   CHANG LIU
Plaintiff
AND
43 STANNARD PTY LTD
First Defendant
REGISTRAR OF TITLES
Second Defendant

Catchwords:

Real property - Application to extend operation of a caveat - Where the land in respect of which the caveator's interest arises is incorrectly described in the caveat - Where a second caveat is lodged correctly describing the land in respect of which the caveator's interest arises - Whether to amend the first caveat - Whether the balance of convenience favours the extension of amended caveat

Legislation:

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

Result:

Court declined to extend the caveat

Representation:

Counsel:

Plaintiff	:	Ms C Moss
First Defendant	:	Mr J F Park
Second Defendant	:	No appearance

Solicitors:

Plaintiff	:	Belmont Legal
First Defendant	:	Dentons Australia
Second Defendant	:	No appearance

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

Bahr v Nicolay [No 2] (1988) 164 CLR 604
Bashford v Bashford [2008] WASC 138
Bateson v Jones [2013] WASC 8
Bride v The Registrar of Titles [2015] WASC 11
Brogue Tableau Pty Ltd v Binningup Nominees Pty Ltd [2007] WASCA 179
Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42
Navarc Pty Ltd v Moondancer Holdings Pty Ltd [2009] WASCA 95
Prem v Surma [2024] WASC 308
Stern & Anor v McArthur & Anor (1988) 165 CLR 489
Wyloo Metals Pty Ltd v Quarry Park Pty Ltd [2024] WASCA 38

GETHING J:

Introduction

By originating summons filed 13 August 2025 (Application) the plaintiff, Chang Liu, seeks an order amending, and then extending, Caveat Q141557 (Caveat) which she lodged over land at 43 Stannard Street, Bentley (Property). Ms Liu asserts that she has an equitable interest arising out of a contract in which she agreed to purchase proposed lot 4 on the strata plan for the Property (Lot 4). The amendment is required as the Caveat incorrectly describes the interest protected as arising over the entirety of the Property, not just Lot 4. The amendment is to amend the Caveat to refer only to Lot 4.
On 25 July 2025, the Registrar of Titles served a notice pursuant to Transfer of Land Act 1893 (WA) (TLA) s 138B notifying Ms Liu that the Caveat would lapse at midnight on 15 August 2025 unless before that time she obtained a Supreme Court order pursuant to TLA s 138B(2)(a) and lodged a copy of that order with the Registrar of Titles.
The Application is supported by:
(a)an affidavit of Ms Liu sworn 13 August 2025 (Liu Affidavit); and
(b)an affidavit of Evan Vivian, Ms Liu's lawyer, sworn 13 August 2025 (Vivian Affidavit).
The owner of the Property is 43 Stannard Pty Ltd (43 Stannard).…

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: [2025] WASC 332
Decision Date: 15 AUGUST 2025

CaseChat Overview and Summary

Ms Liu commenced proceedings against 43 Stannard Pty Ltd in the Supreme Court of Western Australia. Ms Liu claims that she has a valid contract of sale with 43 Stannard for the purchase of a unit, and that the vendor has breached the contract by delaying the completion of the sale. Ms Liu lodged a caveat to prevent the registration of any dealing against the land until the matter is resolved. However, the description of the land in the caveat was incorrect, and Ms Liu subsequently lodged a second caveat with the correct description. 43 Stannard applied to have the first caveat removed, and Ms Liu applied to extend the operation of the second caveat.

The court had to decide whether the first caveat could be amended to include the correct description of the land, and whether the balance of convenience favoured extending the second caveat. The court noted that a caveator's interest may be amended if it can be ascertained from the caveat itself or from the circumstances of the case. However, the court also noted that the balance of convenience must be considered in light of the equities between the parties, and the nature and urgency of the matter. The court held that the first caveat could be amended to include the correct description of the land, as it was clear from the circumstances of the case what land Ms Liu intended to protect. However, the court also held that the balance of convenience did not favour extending the second caveat, as Ms Liu had already commenced proceedings seeking specific performance of the contract, and the delay in the registration of the dealing would not cause her significant prejudice.

The court ordered that the first caveat be amended to include the correct description of the land, and that the second caveat be removed.

Orders

Orders of the court

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Background

Background to the litigation

Background facts Ms Liu deposes that on 8 December 2019 she entered into a written contract of sale with 43 Stannard to purchase Lot 4 (Sale Contract), more specifically:[1]Lot 4 on Strata Plan 80217, Volume 65, folio 180A, being part of the group dwelling known as 43 Stannard Street, Bentely 6012 in the State of Western Australia. She caused the required deposit to be paid.[1] Liu Affidavit, page 13. On 9 February 2022, 43 Stannard, through its solicitor, sought to terminate the Sale Contract by serving on Ms Liu a 'purported' notice of termination and a draft Deed of Termination. Ms Liu deposes that she did not execute this deed. She disputes that the purported termination of the Sale Contract is valid. Rather, she asserts that 43 Stannard has breached the Sale Contract by deliberately holding up completion of the unit on Lot 4 in order to trigger a seller's right of termination. The Caveat was lodged by Ms Liu on 13 September 2024. The interest sought to be protected was described in the document executed by Ms Liu in following terms:[2]AN EQUITABLE ESTATE OR INTEREST AS PURCHASER OF THE FEE SIMPLE OF PROPOSED LOT 4 IN A PLAN OF SUBDIVISION OF LOT 217 ON PLAN 6419The interest is said to arise by virtue of:A contract of sale dated 8 December 2019, made between 43 Stannard Pty Ltd, as vendor, and Chang Liu, as purchaser in respect of proposed Lot 4 in a plan of subdivision of Lot 217 on Plan 6419 (Proposed Strata Plan 80217, Volume 65, Folio 180A).[2] Liu Affidavit, page 161. However, through what I understand was an error or omission by the settlement agent, the nature of the interest registered by Landgate is in the following terms:[3]Equitable Interest as Purchase of the Fee SimpleThis interest is said to be over the entirely of the Property.[3] Liu Affidavit, page 168. On 25 July 2025, Ms Liu commenced proceedings in this court (CIV 1816 of 2025) seeking specific performance of the Sale Contract (Substantive Action).[4] She deposes that other purchasers of strata lots at the Property have also commenced proceedings in the Supreme Court.[4] Vivian Affidavit, page 158. On 11 August 2025, Ms Liu lodged a second caveat (Second Caveat). This time, the land description read:[5]LOT 217 ON PLAN 6419, MORE PARTICULARLY FEE SIMPLE PROPOSED LOT 4 ON STRATA PLAN 80217 DESCRIBED AND SHOWN HATCHED ON THE ATTACHED PLAN.The estate or interest claimed was again:Equitable Interest as Purchase of the Fee Simple [5] Beckwith Affidavit, page 198. Extension of caveat - legal principles Section 137 of the TLA provides that any person claiming an estate or interest in land may lodge a caveat. A caveat has the effect of preventing registration of any dealing against the land until the person who lodged the caveat has an opportunity to justify the caveat by pursuing available remedies.[6][6] Brogue Tableau Pty Ltd v Binningup Nominees Pty Ltd [2007] WASCA 179 [68] (Buss JA, with whom Wheeler JA agreed); Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42, 50 (Owen J, with whom Malcolm CJ and Walsh J agreed).

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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