Lu v Wong - [2019] WASC 169

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   LU -v- WONG [2019] WASC 169
CORAM:   VAUGHAN J
HEARD:   10 MAY 2019
DELIVERED          :   Ex tempore
PUBLISHED           :   21 MAY 2019
FILE NO/S:   CIV 1739 of 2019
BETWEEN:   LISA YE SAN LU
Plaintiff
AND
YAN LUNG TIM WONG
First Defendant
THE REGISTRAR OF TITLES, LANDGATE
Second Defendant

Catchwords:

Application for extension of caveat - Whether the plaintiff's claim has or may have substance - Whether the plaintiff intends to commence and prosecute proceedings to establish the interest claimed in the caveat - Turns on own facts

Legislation:

Transfer of Land Act 1893 (WA), 138C

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	G Hoe
First Defendant	:	In person
Second Defendant	:	No appearance

Solicitors:

Plaintiff	:	Hoe Lawyers
First Defendant	:	In person
Second Defendant	:	No appearance

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

Baumgartner v Baumgartner [1987] HCA 59, [1987] 164 CLR 137
Bride v The Registrar of Titles [2015] WASC 11
Muschinski v Dodds (1985) HCA 78; (1985) 160 CLR 583
Palazzo Homes Proprietary Limited v Goh [2010] WASC 407

VAUGHAN J:

(These reasons were delivered orally at the conclusion of the hearing. They have been edited to correct matters of grammar and infelicity of expression. Authorities and other references have also been footnoted rather than appearing in the body of the reasons.)

Introduction

The plaintiff, Lisa Lu, is seeking orders pursuant to s 138C of the Transfer of Land Act 1893 (WA) (TLA) for the extension of a Caveat.
The application is made by an originating summons dated 26 April 2019. It is supported by three affidavits of Ms Lu, namely, affidavits sworn 26 and 30 April 2019 and an affidavit sworn 8 May 2019. Ms Lu has proffered an undertaking as to damages.
The orders sought today are set out in a minute of proposed orders dated 9 May 2019. That minute reads:
(1)The operation of the Caveat No 931561 be extended until further order of the court.
(2)The costs of this application be in the cause.
(3)The application to otherwise be adjourned sine die with liberty to apply.
Two things should be noted about the orders as proposed. First, the orders sought are not said to be conditional on an undertaking as to damages. I would not extend the operation of the Caveat absent an undertaking as to damages. However, an undertaking has been proffered. Second, the orders sought are not said to be conditional on Ms Lu commencing and prosecuting in a timely way proceedings to establish the interest she has claimed in the Caveat. I would not extend the operation of the caveat absent a condition to this effect.
The second matter is problematic for the application. Nowhere in Ms Lu's affidavit material does she foreshadow an intention to commence proceedings to establish the claimed interest. Rather, it appears that Ms Lu's real object is to effect monetary recovery from the first defendant.
The first defendant, Tim Wong, is…

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: [2019] WASC 169
Decision Date: 21 MAY 2019

CaseChat Overview and Summary

In the matter of Lu v Wong, the dispute arose from an application by the plaintiff to extend a caveat lodged over certain property. The plaintiff claimed to have an interest in the property that, if established, would affect the defendant's ability to deal with the property. The case was heard in the Supreme Court of Victoria. The plaintiff sought to extend the caveat beyond the initial six-month period, arguing that there was substance to their claim and an intention to commence and prosecute proceedings to establish the interest claimed in the caveat.

The court was tasked with determining two primary legal issues. Firstly, whether the plaintiff's claim had or may have substance, meaning whether there was a reasonable prospect that the plaintiff could establish their claimed interest in the property. Secondly, the court had to assess whether the plaintiff intended to commence and prosecute proceedings to establish the interest claimed in the caveat. These issues were crucial in deciding whether the extension of the caveat was justified under the relevant statutory provisions.

In considering these issues, the court examined the evidence provided by the plaintiff regarding their claimed interest and intentions to proceed with legal action. The court found that the plaintiff's claim did have substance, as there was a reasonable prospect that the claimed interest could be established. Additionally, the court was satisfied that the plaintiff intended to commence and prosecute proceedings to establish the interest. Consequently, the court granted the plaintiff's application for an extension of the caveat. The decision underscored the importance of the plaintiff demonstrating both the substance of their claim and their intention to pursue legal action to support the extension of the caveat.

Orders