JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: LYDON -v- RYDING & ANOR [2002] WASC 308
CORAM: MCLURE J
HEARD: 5 DECEMBER 2002
DELIVERED : 16 DECEMBER 2002
FILE NO/S: CIV 2217 of 2002
BETWEEN: KENNETH MALCOLM LYDON
Plaintiff
AND
ELLA EILEEN RYDING
First DefendantREGISTRAR OF TITLES
Second Defendant
Catchwords:
Caveat - Application under the Transfer of Land Act 1893 - Serious question to be tried - Oral agreement for interest in land under a Will - Whether a right of access to land - Remedies for undue influence and estoppel - Whether constructive trust a right or remedy which gives rise to a caveatable interest
Legislation:
Transfer of Land Act 1893 (WA), s 138
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff: In person
First Defendant : Ms C A Searle
Second Defendant : No appearance
Solicitors:
Plaintiff: In person
First Defendant : Corinne Griffin & Co
Second Defendant : No appearance
Case(s) referred to in judgment(s):
Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42
Deputy Commissioner of Taxation v Corwest Management Pty Ltd [1978] WAR 129
Giumelli v Giumelli (1999) 196 CLR 101
Gors v Henderson, unreported; SCt of WA (Steytler J); Library No 980499, 7 September 1998
Horton v Jones (1935) 53 CLR 475
Midland Brick Corporation Pty Ltd v Welsh & Anor [2002] WASC 248
Porter v McDonald [1984] WAR 271
Case(s) also cited:
Baumgartner v Baumgartner (1987) 164 CLR 137
Holland v Hodgson (1872) LR 7 CP 328
MCLURE J:
Introduction
This is the plaintiff's application for an order extending the operation of caveat I129642 over the land at 17 Blundell Street, West Swan ("the property").
The plaintiff appears in person. The first defendant is the plaintiff's mother. She is 78 years old and in ill health. She lives on the property and has done so for the past 20 odd years. Evidence of the first defendant's medical condition was provided by her medical practitioner who confirms that the first defendant may at some stage need to move into alternative aged care accommodation.
Background
The history of the ownership of the property is as follows. It was purchased in 1982 for the sum of $83,000 by the five members of the first defendant's family being her then husband and her three children. The members of the family held the property as tenants in common in equal shares. Each of the children paid $4,000 towards the purchase price of the property. In 1994 the first defendant's husband transferred his one‑fifth share in the property to the first defendant.
In September 1997 the first defendant's three children, including the plaintiff, transferred their one‑fifth share in the property to the first defendant for the sum of $20,000 each. At the time of the transfer, the value of the property, at least for stamp duty purposes, was $225,000. It seems…
Continue reading Lydon v Ryding
Sign in free to access the full text
- AGLC
- Lydon v Ryding [2002] WASC 308
- Case
- [2002] WASC 308
- Decision Date
CaseChat Overview and Summary
The court found that the plaintiff's claim of a caveatable interest in the property was based on four grounds. The first was an alleged agreement between the plaintiff and his mother that in consideration of the plaintiff transferring his one-fifth share in the property, his mother promised that he would receive a one-third interest in the property when she died. The second was that the plaintiff had an alleged interest as an unpaid vendor of his one-fifth interest in the property. The third was that he had a right of access or entry to his workshop which could be protected by caveat. The fourth was a constructive trust. The court found that the first ground was not supported by evidence of part performance, and therefore the agreement was not enforceable. The second ground was a restatement of the first ground. The third ground was not supported by evidence of any arrangement or agreement concerning access to the property by the plaintiff. The court found that the fourth ground, the constructive trust, was arguable on the basis of undue influence, unconscionable conduct, and estoppel.
The court found that the plaintiff had demonstrated an arguable case as to the existence of a caveatable interest in the property based on the constructive trust ground. The court noted that it was unusual to refuse an order extending a caveat where an arguable case as to the existence of a caveatable interest had been demonstrated, because the lapse or removal of the caveat had the potential to result in the destruction, for all practicable purposes, of the benefit of the proprietary interest purportedly protected by the caveat. The court therefore granted the plaintiff's application for an extension of the caveat.
The court ordered that the caveat be extended for a period of six months, and that the plaintiff bear the costs of the application.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Although the balance of convenience must also be considered in an application for an extension of caveat, it is unusual to refuse an order extending a caveat where an arguable case as to the existence of a caveatable interest has been demonstrated. That is so because the lapse or removal of the caveat has the potential to result in the destruction, for all practicable purposes, of the benefit of the proprietary interest purportedly protected by the caveat: Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (supra). The plaintiff relied on four grounds in support of his claim of a caveatable interest in the property. Firstly, the alleged agreement between himself and his mother pursuant to which, in consideration of the plaintiff transferring his one‑fifth share in the property, his mother promised that he would receive a one‑third interest in the property when she died. Secondly, his alleged interest as an unpaid vendor of his one‑fifth interest in the property. This ground is in effect a re‑statement of the first ground. Thirdly, that he had a right of access or entry to his workshop which could be protected by caveat. Finally, he relied on a constructive trust. Insofar as the alleged agreement involves a specific promise to leave a one‑third interest in the property to the plaintiff in the first defendant's Will, it is an agreement for the disposition of an interest in land which must be in writing: Horton v Jones (1935) 53 CLR 475; Gors v Henderson, unreported; SCt of WA (Steytler J); Library No 980499, 7 September 1998. However, an oral agreement would be enforceable if there were acts of part performance. The test of part performance is whether there are any acts which are unequivocal and in their own nature referrable to the alleged agreement: Gors v Henderson (supra). There is no evidence before me of any acts which could arguably be said to be unequivocal and in their own nature referable to the alleged agreement relied on by the plaintiff. Accordingly, there is no arguable case that the plaintiff has a specifically enforceable agreement giving rise to an interest in the property which can be protected by caveat. Further, there is no evidence before me of an arguable claim that the plaintiff has an enforceable entitlement to access the property. It appears the improvements referred to by the plaintiff were constructed before the transfer of his interest in the property in 1997. Further, there is no evidence of any arrangement or agreement between the plaintiff and the first defendant concerning access to the property by the plaintiff. That leaves the constructive trust ground relied on by the plaintiff. I am satisfied that the same facts relied on to establish the alleged agreement also give rise to arguable claims in undue influence, unconscionable conduct (as to which, see Powell v Powell [2002] WASC 105) and estoppel. A court may grant proprietary relief by way of a constructive trust of an interest in the property if the plaintiff succeeded on these grounds: Giumelli v Giumelli (1999) 196 CLR 101.