McCorry v Lorimer

Case [2021] WASC 311

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   MCCORRY -v- LORIMER [2021] WASC 311

CORAM:   ACTING MASTER STRK

HEARD:   17 JUNE 2021

DELIVERED          :   14 SEPTEMBER 2021

FILE NO/S:   CIV 1304 of 2021

MATTER:   Transfer of Land Act 1893 Sections 138B and 138C

BETWEEN:   JOHN MCCORRY

Plaintiff

AND

JEFFREY PETER LORIMER

IRENE LEONORA LORIMER

First Defendants

REGISTRAR OF TITLES

Second Defendant


Catchwords:

Real property - Caveat - Application to extend - Sale of land - Interest claimed as purchaser of the fee simple - Serious question to be tried - Balance of convenience - Turns on own facts

Legislation:

Transfer of Land Act 1893 (WA)

Result:

Application granted

Category:    B

Representation:

Counsel:

Plaintiff : M Curwood SC
First Defendants : M R Collins
Second Defendant : No Appearance

Solicitors:

Plaintiff : Frichot Lawyers
First Defendants : H Kremer & Co
Second Defendant : Not Applicable

Cases referred to in decision:

Bride v Registrar of Titles [2015] WASC 11

Custom Credit Corp Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42

Deputy Commissioner of Taxation v Corwest Management Pty Ltd [1978] WAR 129

Khoury v Government Insurance Office of New South Wales (1984) 165 CLR 622

Love v Simmons [2016] WASCA 176

Mario Casella & Sons Builders Pty Ltd v Duckworth [2005] WASC 245

Nigel Watts Fashion Agencies Pty Ltd v GIO General Ltd (1994) 8 ANZ Insurance Cases 61-235

Perri v Collangatta Investments Pty Ltd (1982) 149 CLR 537

Sargent v ASL Developments Ltd (1974) 131 CLR 634

Shepherd & Anor v Baster [2006] WASC 176

Simmons v Love [2015] WASC 79

Wiltrading (WA) Pty Ltd v Lumley General Insurance Ltd and Ors (2005) 30 WAR 290

Yaran Holdings Pty Ltd v Goldsmith 7 Pty Ltd [2014] WASC 171

ACTING MASTER STRK:

  1. By an originating summons filed on 16 April 2021, the plaintiff seeks the extension of the operation of a caveat (Caveat 0674100) lodged by him on 17 March 2021, claiming an interest in the property situated and known as 33 Brindabella Crescent, Halls Head (the Halls Head property). The application is made under s 138C of the Transfer of Land Act 1893 (WA).

  2. The first defendants are the registered proprietors of the Halls Head property. By the caveat, the plaintiff claims an interest in the Halls Head property as the purchaser of the fee simple. While an interim order was made with the consent of the first defendants on 19 April 2021 extending the operation of the caveat until further order of the court, the application is substantively opposed by the first defendants. In summary, the contest between the parties is whether the contract of sale between the plaintiff (as Buyer) and first defendants (as Seller) remains in force. The second defendant is the Registrar of Titles and has not filed an appearance in the proceeding.

  3. For the reasons set out below, I find that it is appropriate that the application be granted. The interim order of Master Sanderson extending the operation of…

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McCorry v Lorimer [2021] WASC 311
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[2021] WASC 311
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CaseChat Overview and Summary

McCorry v Lorimer involved the plaintiff, McCorry, seeking an extension of a caveat lodged over a property in Halls Head. The defendants, Lorimer and others, contested the extension, arguing that McCorry's claim was without foundation and that his conduct had been unreasonable. The case was heard in the Supreme Court of Western Australia. The legal issues centred on whether the balance of convenience favoured extending the caveat, considering McCorry's interest in the property and his conduct in the period following the breakdown of a previous contract for the sale of the property. The court also considered whether there were apparent weaknesses in McCorry's case that might tilt the balance of convenience in favour of the defendants.

The court examined the factors weighing in favour of extending the caveat, such as McCorry's interest in the property as the purchaser of the fee simple. It noted that it is unusual to remove a caveat unless the claim appears to be without foundation, as per Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd. The court scrutinised McCorry's conduct, particularly between the breakdown of the Treeby contract on 29 January 2021 and the entry into another contract by the defendants on 17 February 2021. The court found no unreasonableness in McCorry's conduct that would tip the balance against the extension of the caveat. It also considered the strengths and weaknesses of McCorry's case, concluding that while the defendants might raise cogent arguments in defence, McCorry's prospects were not so weak as to favour the defendants.

In conclusion, the court determined that the balance of convenience favoured extending the caveat pending the outcome of the final proceedings. The interim order extending the caveat was upheld, but the court was not prepared to extend the caveat indefinitely. McCorry was instructed to promptly commence proceedings, which should be entered in the CMC List. The court invited the parties to provide input on the form of orders and costs.

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

I have weighed in the balance the fact that if the caveat is not extended, the plaintiff's interest in the Halls Head property as the purchaser of the fee simple will be lost. This weighs heavily in the balance. It is unusual to remove a caveat unless the claim appears to be without foundation.[104][104] Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd 48, and those cases cited at ft 65 above. I have weighed in the balance the plaintiff's conduct, particularly in that period between the Treeby contract falling over on 29 January 2021 and 17 February 2021 (when the first defendants entered into a contract with Ms Primerano). I have focussed on this period as it would appear that the first defendants' position was fixed upon the signing of another contract for the sale of the Halls Head property on 17 February 2021. For the purpose of this application, proceeding on the basis of the plaintiff's evidence, I do not discern there to be delay or such unreasonableness of conduct on the part of the plaintiff that might tip the balance against the extension of the caveat. Finally, I note that I have carefully considered the strengths and weaknesses of the plaintiff's case in considering the balance of convenience. On the first defendants' analysis, the plaintiff has four hurdles to overcome. While it would appear likely that at a trial, cogent arguments will be raised in defence of the plaintiff's claim, I do not evaluate the plaintiff's prospects to be so apparently weak as to tilt the balance of convenience in the first defendants' favour. In my view, the balance of convenience favours the extension of the caveat pending the determination of final relief as to the obligations and rights under the Halls Head Contract. For these reasons, I find that it is appropriate that the application be granted, and that the interim order of Master Sanderson extending the operation of the caveat until further order of the court should not be disturbed. I am not however prepared to make an order extending the caveat on an open-ended basis. The plaintiff says that he will commence proceedings. He must do so promptly and those proceedings ought be entered in the CMC List. I will hear from the parties as to the appropriate form of orders and as to costs.