Lydon v Ryding

Case [2002] WASC 308


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 Defendant

REGISTRAR 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

Powell v Powell [2002] WASC 105

Case(s) also cited:

Baumgartner v Baumgartner (1987) 164 CLR 137

Holland v Hodgson (1872) LR 7 CP 328

Jandric v Jandric [1999] WASC 22

Muschinski v Dodds (1985) 160 CLR 583

MCLURE J:

Introduction

  1. 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").

  2. 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

  1. 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.

  2. 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…

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Lydon v Ryding [2002] WASC 308
Case
[2002] WASC 308
Decision Date

CaseChat Overview and Summary

In the case of Lydon v Ryding, the plaintiff sought an extension of a caveat over a parcel of land. The plaintiff and his mother had originally owned the property as tenants in common, but the plaintiff had transferred his one-fifth share to his mother. The plaintiff now sought an extension of the caveat to protect an alleged interest in the property. The court was required to decide whether the plaintiff had a caveatable interest in the property, and if so, whether the balance of convenience favoured the extension of the caveat.

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

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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

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.