McGiveron v Stanton-bovis - [2007] WASC 240

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: McGIVERON -v- STANTONBOVIS [2007] WASC 240

CORAM: ACTING MASTER CHAPMAN

HEARD: 28 AUGUST 2007

DELIVERED : 26 OCTOBER 2007

FILE NO/S: CIV 1228 of 2007

BETWEEN: JAMES LAWRENCE McGIVERON
CAROL SUSAN McGIVERON
Plaintiffs
AND
NIGEL JOHN STANTONBOVIS
NATASHA JANE STANTONBOVIS
First Defendants
REGISTRAR OF TITLES
Second Defendant

Catchwords:

Conveyancing - Land titles under Torrens system - Application to maintain or extend caveats

Legislation:

Transfer of Land Act 1893 (WA), s 48, s 48A, s 138

Result:

Leave granted to plaintiffs to file a further caveat

Category: B

Representation:

Counsel:

Plaintiffs:     Ms S T Burke
First Defendants            :     Mr B W Ashdown
Second Defendant         :     No appearance

Solicitors:

Plaintiffs:     Fiocco's Lawyers
First Defendants            :     Chris Baker & Associates
Second Defendant         :     No appearance

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

Mazzuchelli v Mazzuchelli [2006] WASC 124
Milne Feeds Pty Ltd v Bride (1993) 10 WAR 542
Professional Services of Australia Pty Ltd v Mila Properties Pty Ltd [2004] WASC 30

ACTING MASTER CHAPMAN:

The application

The plaintiffs, by originating summons filed on 8 March 2007, seek an order that the operation of caveat registration number J759170 be extended and not be removed until further order of the court. At the special appointment leave was given to the parties to file and serve further written submissions which were filed on 13 and 17 September respectively.

Background

As a matter of history, a public access way existed between the property owned by the plaintiffs being lot 292 and that of the first defendants being lot 291. Some time prior to the first defendants purchasing lot 291, the then owners of lots 291 and 292 were given an opportunity to purchase part of this access way. It is alleged that by agreement with the previous registered proprietors of lot 291 the plaintiffs purchased the whole of the access way.
Regrettably, the plaintiffs did not finalise that transaction in that there was no registration of a transfer reflecting the purchase by the plaintiffs of the portion of the public access way from the previous owners nor at that time did the plaintiffs lodge a caveat protecting their interest.

Issues

The plaintiffs contend they have an arguable case that they have a caveatable interest in the land on two grounds: (1) the notice the first defendants had in respect of the proposed subdivision prior to the purchase of lot 291; (2) the conduct of the first defendants shortly following their purchase of lot 291 which would stop the first defendants from asserting what they consider to be their legal entitlement to the disputed land. It is said that the estoppel arises both in the form of an equitable estoppel and in the form of estoppel by acquiescence, or a proprietary estoppel in respect of an easement that can be seen to have been created over the disputed land in favour of the plaintiffs.
The plaintiffs concede that no transfer was registered transferring the whole of the access…

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.

Continue reading McGiveron v Stanton-bovis

Details

AGLC: McGiveron v Stanton-bovis [2007] WASC 240
Case: [2007] WASC 240
Decision Date: 26 October 2007

CaseChat Overview and Summary

McGiveron v Stanton-bovis was a case before the Supreme Court of South Australia where the plaintiffs sought to maintain or extend a caveat they had lodged against the transfer of property. The defendants, Stanton-bovis, contested the application. The case centred on the legal principles governing the lodging and maintenance of caveats in the Torrens system of land titles.

The primary legal issue before the court was whether the plaintiffs had established a sufficient cause to maintain or extend the caveat. The court was required to consider the criteria for lodging a caveat, as outlined in relevant legislation, and whether the plaintiffs had a bona fide reason to prevent the transfer of the property title until their concerns were addressed. The court had to balance the plaintiffs' interest in protecting their potential rights against the defendants' interest in the unencumbered transfer of property.

The court determined that the plaintiffs had demonstrated a reasonable cause to lodge the caveat, as they had concerns about the validity of the defendants' title. The court found that the plaintiffs had acted in good faith and had a legitimate interest in the property, which justified the lodging of the caveat. Consequently, the court granted leave for the plaintiffs to file a further caveat, ensuring that their concerns could be addressed before any transfer of title. The court's decision was based on the need to protect the plaintiffs' interests and maintain the integrity of the Torrens system.

Orders

Orders of the court

Leave granted to plaintiffs to file a further caveat.

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

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