Mercedes Group Pty Ltd (Trading as Zorzi Builders) v Cooah Investments Pty Ltd (as trustee for the Cooah Trust) - [2025] WASC 361

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   MERCEDES GROUP PTY LTD (TRADING AS ZORZI BUILDERS) -v- COOAH INVESTMENTS PTY LTD (AS TRUSTEE FOR THE COOAH TRUST) [2025] WASC 361
CORAM:   HOWARD J
HEARD:   25 AUGUST 2025
DELIVERED          :   29 AUGUST 2025
PUBLISHED           :   4 SEPTEMBER 2025
FILE NO/S:   CIV 1408 of 2025
BETWEEN:   MERCEDES GROUP PTY LTD (TRADING AS ZORZI BUILDERS)
Applicant
AND
COOAH INVESTMENTS PTY LTD (AS TRUSTEE FOR THE COOAH TRUST)
First Respondent
REGISTRAR OF TITLES
Second Respondent

Catchwords:

Real Property - Caveat - Application to extend a caveat - Where the underlying dispute is the subject of Arbitration - Where Arbitrator's award not likely to be made until March 2026 - Whether the caveat should be amended from an absolute caveat to a subject to claim caveat - Application granted

Practice and procedure - Application for confidentiality orders - Application granted in part

Legislation:

Commercial Arbitration Act 1985 (WA)
Transfer of Land Act 1893 (WA)
Rules of the Supreme Court 1971 (WA)

Category: B

Representation:

Counsel:

Applicant	:	M Lang
First Respondent	:	B Millar
Second Respondent	:	No appearance

Solicitors:

Applicant	:	Lang Litigation and Construction Law
First Respondent	:	Herbert Smith Freehills Kramer
Second Respondent	:	No appearance

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

Antz Inya Pantz Coffee Pty Ltd v Muhl [2023] WASC 320
Coco C'Bay Association (Inc) v Paddison [2022] WASC 5
Deputy Commissioner of Taxation v Corwest Management Pty Ltd [1978] WAR 129
Gangemi v Gangemi [2009] WASC 195
Gibson v Co‑ordinated Building Services Pty Ltd [1989] BPR 9630; [1989] ANZ Com R 587
Graham v Chappell (1993) 9 WAR 157
Hall v Aldridge [2024] WASC 155
Kalx Capital Securities Pty Ltd v Richardson 1 Pty Ltd [No 2] [2021] WASC 302
Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560
Midland Brick Company Pty Ltd v Welsh [2006] WASC 122; (2006) 32 WAR 287
Palazzo Homes v Goh [2010] WASC 407
Pascoe v McKessar [2019] WASC 229
Renascent Interiors & Refurbishers Pty Ltd v ASEL [2002] NSWSC 345
State of Victoria v Intralot Australia Pty Ltd [2015] VSCA 358
Westport Insurance Corporation v Gordian Runoff Ltd [2011] HCA 37 (2011) 244 CLR 239
Woodford v Pattinson [No 2] [2017] WASC 334

HOWARD J:

(In the publicly published reasons certain matters have been redacted for the reasons set out below).

In about August 2016, the plaintiff as Builder and the first defendant as Owner entered into a lump sum building contract (Contract).[1]
[1] The Contract was 'MJL-6' to the first Lang affidavit commencing at page 22.
By an originating summons filed 16 April 2025, the plaintiff seeks an order extending the operation of a Caveat pursuant to s 138C of the Transfer of Land Act 1893 (WA) (TL Act) (unless otherwise indicated, statutory references from here are to this Act).
The Caveat was lodged and registered by the Builder on 19 February 2020 over the residential land in Dalkeith in this State owned by the Owner and on which the construction the subject of the Contract was to take place (Property).
The Caveat was lodged by the Builder pursuant to cl 6 of the General Conditions of the Contract,[2] which provides:
6.Security
The Owner hereby charges the land constituting the Site with the due payment to the Builder of all the monies that will and/or may become payable hereunder and irrevocably authorises and consents to the Builder lodging an absolute caveat in respect of the Site to protect the Builder's interests herein.
[2] 'MJL-6' at page 32 of the first Lang affidavit.
The parties are in dispute, which has been referred to Arbitration before a barrister, Nicholas Dillon, as Arbitrator. From the materials before the Court, the Arbitration has been both protracted and wildly expensive.[3]
[3] Indeed, so much so that the negative observations of Heydon J on the 'attractions of arbitration' are brought to mind: see Westport Insurance Corporation v Gordian Runoff Ltd [2011] HCA 37 (2011) 244 CLR 239 [111].
The Arbitrator is yet to deliver his award.
The Owner by its solicitor has speculated that the arbitral award may be delivered between December 2025 and March 2026.[4] It appeared to be accepted at the hearing that even March 2026 may be an optimistic estimate. As I understand it, however, the Arbitrator has not committed to a particular date.
[4] Affidavit of Peter Richard Keeves made and filed 22 August 2025 (fourth Keeves affidavit) [23], [25].
Administrators were appointed to the Builder on 20 March 2025.
By email dated 21 March 2025, the Owner gave notice to the Administrators, amongst other things, that it had a significant claim against the Builder in the Arbitration which exceeded $9 million.[5]
[5] Affidavit of Peter Richard Keeves made and filed 5 May 2025 (first Keeves affidavit) 'PRK-3' at page 25.
Further, it appears that the Owner lodged a Proof of Debt dated 31 March 2025 with the Administrators for a sum in excess of $9.8 million.[6]
[6] Part of 'PRK-3' at page 28 of the first Keeves affidavit.
A document titled Precis[7] was attached to the Owner's Proof of Debt. As will be seen, the Owner sought, in some of its earlier submissions, to rely on matters asserted in the Precis. I will return to that.
[7] Part of 'PRK-3' at page 30 of the first Keeves affidavit.
The Owner caused a notice to be sent from Landgate to the Builder dated 27 March 2025 pursuant to s 138B of the TL Act.[8] That notice stated that the Caveat was to lapse on 22 April 2025.
[8] Affidavit of Matthew John Lang made and filed 16 April 2025 (first Lang affidavit) [6], [7] and 'MJL-2'.
By orders made by Hill J on 17 April 2025, the Caveat was extended until further order.
On 16 April 2025, the following undertakings as to damages were filed in support of the extension of the Caveat, namely:
1.by David Reynolds, a director/shareholder of the Builder; and
2.by Tomasz Kaminski, a director/shareholder of the Builder.
Whether the undertakings by Mr Reynolds and Mr Kaminski have value is a matter which has been comparatively recently agitated by the Owner and will be returned to below.
On about 20 June 2025, the Administrators were appointed as Liquidators of the Builder following a creditors' resolution.[9]
[9] Affidavit of Peter Richard Keeves made 1 August 2025 and filed 5 August 2025 (third Keeves affidavit) [13] - [14].
I note here that a further undertaking was filed on the day of the hearing by one of the Liquidators, Mr Shaw. Counsel for the Builder told the Court that Mr Shaw provided it in his personal capacity. That will be returned to below.
Further undertakings, namely of Mr Shaw and Richard Alberran (another of the Liquidators), were filed on 27 August 2025, after the hearing of the matter but prior to the publication of these reasons. I return to these undertakings below.
The Builder relied on affidavits of its solicitor, Matthew John Lang:
1.made and filed 16 April 2025 (first Lang affidavit); and
2.made and filed 12 August 2025 (second Lang affidavit).
The two Lang affidavits were read without objection.
The Owner relied on four affidavits of one of its solicitors, Peter Richard Keeves:
1.made and filed 5 May 2025 (first Keeves affidavit);
2.made and filed 4 June 2025 (second Keeves affidavit);
3.made 1 August 2025 and filed 5 August 2025 (third Keeves affidavit); and
4.made and filed 22 August 2025 (fourth Keeves affidavit).
The Owner also relied upon an affidavit of its director, Adam Roy Lisle, made 4 August 2025 and filed 5 August 2025.
Each of those affidavits was read without objection.

Underlying dispute and the Arbitration

Mr Lang deposed to the following matters which I have taken as background:
1.the Owner purported to terminate the Contract;[10]
2.the Builder was excluded from the Site from mid‑February 2020;[11]
3.the Builder terminated the Contract by a Notice of Termination dated 29 February 2020;[12]
4.the Builder served a Notice of Dispute on the Owner dated 29 February 2020;[13]
5.the Builder and the Owner are in dispute and that dispute has been referred to Mr Dillon as Arbitrator under cl 16 of the Contract;[14]
6.the Arbitration took place in February to March 2023 and in April to May 2024 with closing submissions being filed in August 2024;[15] and
7.the Arbitrator's final award has not been delivered.[16]
[10] First Lang affidavit [13].
[11] First Lang affidavit [14].
[12] First Lang affidavit [15].
[13] First Lang affidavit [16].
[14] First Lang affidavit [17].
[15] First Lang affidavit [18].
[16] First Lang affidavit [19].
[Redacted]. Both parties claim significant sums against the other in the Arbitration.
The Owner has submitted[17] that the contract price:
1.in the Contract was $6.25 million (including GST) but with numerous provisional sums and prime cost items; and
2.by early 2020, had increased to about $8 million (including GST).
[17] First defendant's outline of submissions filed 4 June 2025 [15(b)]
Further, relevantly, the Owner sought security for costs in the Arbitration from the Builder. The Arbitrator made orders programming the hearing of that application on 24 April 2025.[18] Those orders were varied by orders made by the Arbitrator on 20 May 2025.[19]
[18] 'PRK-7' at page 4 of the second Keeves affidavit.
[19] 'PRK-8' at page 5 of the second Keeves affidavit.
By his third affidavit, Mr Keeves deposed to the Arbitrator issuing an award in respect of the security for costs on 24 July 2025.[20] The effect of that award was that the Builder:
… was ordered to provide security, by payment into the plaintiff’s solicitors' trust account:
(a) for the first defendant's further costs of the Arbitration in the amount of $[Redacted] (to be provided within 7 days of the order, namely by 1 August 2025); and
(b) of an amount representing the plaintiff's 50% share of the costs and disbursements it is estimated the parties will incur with the arbitral tribunal in finalising and issuing the award, in the amount of $[Redacted] (no time was specified by which time this security must be provided).[21]
[20] The relevant Arbitrator's award is 'MJL-10' to the second Lang affidavit.
[21] Third Keeves affidavit [7]. See also the second Lang affidavit [16].
Mr Keeves also deposed to correspondence passing between the parties' solicitors and the Arbitrator which led, effectively, to the award for the security of costs being varied to the Builder providing bank guarantees by 8 August 2025.[22]
[22] Third Keeves affidavit [8] - [11]. See also the second Lang affidavit [17].
The Builder's solicitor deposed to the awarded security for costs having been provided on 8 August 2024.[23] The Owner accepted that the security for costs awarded by the Arbitrator has now been provided.[24]
[23] Second Lang affidavit [18].
[24] First defendant's supplementary submissions filed 22 August 2025 [7(b)].
The Builder's claims under cl 13(c) of the Contract, including interest to 25 August 2025, are deposed to be $[Redacted].[25]
[25] Second Lang affidavit [34(e)(iii)]. Mr Lang deposed that interest was payable at $536.37 per day from 25 August 2025.
If two further claims are added to the claim pursuant to cl 13(c) of the Contract, the total claims made by the Builder in the Arbitration were calculated at 25 August 2025 to be $[Redacted].[26]
[26] Second Lang affidavit [33] - [35].
The parties respectively deposed to having spent the following amounts in legal costs in the Arbitration:
1.the Builder has spent more than $[Redacted] (including expert witnesses);[27] and
2.the Owner has spent more than $[Redacted].[28]
[27] Second Lang affidavit [28].
[28] Second Lang affidavit [15].
These cannot be stated without observing that they are 'eye‑popping' sums when one considers the contract price.
Further, Mr Lang for the Builder deposed that it may incur at least another $50,000 in costs before the final award is made.[29]
[29] Second Lang affidavit [31].

Principles applicable to this application

The parties were agreed that the relevant principles to be applied are as follows (taken from the Builder's written submissions):[30]
[30] Filed 19 May 2025.
10. To succeed in the application, the plaintiff must demonstrate that:
a. the claimed interest in the land: "has or may have" substance: section 138C(2) of the Transfer of Land Act 1893 (WA) (TLA);
b. the plaintiff has an arguable case for the existence of a caveatable interest in the land: Bashford v Bashford [2008] WASC 138 at [50]; and
c. the balance of convenience favours the extension of the Caveat: Bashford v Bashford [2008] WASC 138 at [50].
11. To determine whether:
a.the claim has or may have substance the Court must be satisfied that the plaintiff has a prima facie case in the sense explained in the context of an application for an interlocutory injunction; and
b. the balance of convenience favours the extension of the Caveat, the Court must weigh the competing benefits and disadvantages to each party of extending or not extending the operation of the Caveats: Simmons v Love [2014] WASC 116 at [29] and [30].
12. The legal principles as to the extension of caveats under the TLA was addressed by Jenkins J in Cardinal Constructions Pty Ltd v Ghersinich [2009] WASC 239 (Cardinal).
13. In Cardinal, the plaintiff sought an extension to the operation of a caveat lodged pursuant to a charging clause in a building contract (as the plaintiff seeks in this present application). Her Honour stated:
"The Act s137 permits a person who claims any estate or interest in land to lodge a caveat forbidding the registration of any dealing affecting the claimed estate or interest. The purpose of a caveat is to act as a statutory injunction to the Registrar General to prevent registration of dealings with the land "so as to enable, in the ultimate analysis, a determination of the conflicting claims" Leros Pty Ltd v Terara Pty Ltd (1992) 174 CLR 407 at 422 (Mason CJ, Dawson and McHugh JJ) [paragraph 39].
It is clear from the statutory scheme that in an application under the Act s138C the onus is upon the caveator to satisfy the court that the caveator’s claim has or may have substance. This has been interpreted as an onus to satisfy the court that there is a serious question to be tried as to whether a caveatable interest exists. The caveator must also satisfy the court that the balance of convenience favours the retention of the caveat in that it would be better to maintain the status quo until the trial of the action by preventing the caveatee from disposing of the land to a third party. If there is a serious question to be tried it will be unusual for the balance of convenience to lie in the refusing of an application to extend a caveat: Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42. This is "not a proposition of law but simply a general observation as a matter of fact": Navarac Pty Ltd v Moondancer Holdings Pty Ltd [2009] WASCA 95. (original emphasis)

The Owner's opposition to the extension

Initially, the Owner opposed the extension of the Caveat on the basis that the Builder's caveatable interest in the land was not arguable because:
1.the Contract has been terminated;
2.the Builder sued for damages for breach of contract (including wrongful termination); but
3.the charging clause in the Contract applied only to amounts that were 'payable hereunder', and the remedial obligation to pay damages was an obligation 'arising by operation of law', and not under the contract.[31]
[31] Owner's outline of submissions filed 4 June 2025 [11], citing Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560 (Nettle, Gordon and Edelman JJ) at [195].
By its last submissions, the Owner now accepts that the Builder has an arguable claim to support the caveat in respect of its claims under cl 13(c) of the Contract.[32]
[32] First defendant's supplementary submissions filed 22 August 2025 [8].
It is unclear from the material before the Court what prompted this significant change of position on the part of the Owner. The change has appropriately, if belatedly, simplified and narrowed the issues to be decided.
The Owner initially contended that if the Builder established an arguable case for caveatable interest then the balance of convenience favoured the removal of the Caveat for the following reasons:
1.although the Court could not sensibly engage in the merits of the claims the subject of the Arbitration, it could be satisfied that there was no real prospect that the Builder would be able to pay any security for costs awarded against it, and therefore the Arbitration would be stayed, such that no award would ever be made against the Owner (and therefore no amount would become payable to the Builder, even if such amount was secured by the charging clause in the Contract, which was denied);[33] and
2.in the event of a sale of the Property, the Owner was prepared to retain a certain amount of the sale proceeds pending any outcome of the Arbitration as security for any liability owed to the Builder (ie which will, in practice, be subject to the Builder providing security for costs, if an amount was ordered).[34] No sum was initially proffered by the Owner.
[33] Owner's outline of submissions filed 4 June 2025 [12(a)].
[34] Owner's outline of submissions filed 4 June 2025 [12(b)].
In passing, I also note the following initial submission of the Owner:
The timing of a decision on the security for costs application is uncertain. This Court can reasonably conclude that [the Builder] will be ordered to provide security, given [the Builder's] insolvent status. This Court can also infer that if ordered, [the Builder] is unlikely to provide the necessary security. As recorded in [20(c)] of the [Builder's] Outline, the arbitrator has advised that he expects the completion of the final award to take approximately 3 full months to complete.[35]
[35] Owner's outline of submissions filed 4 June 2025 [17(g)].
Of course, the Court would not have been (and could never have been) in a position to speculate as to whether the Arbitrator would order security for costs or not, and whether they would be provided. That was particularly so in circumstances where, on the Owner's own evidence, the Administrators had told creditors that the Builder had a source of funds to meet a security for costs order.[36]
[36] See Owner's outline of submissions filed 4 June 2025 [17(e)] and 'PRK-5' at section 8.2.3.4 of the Administrator's report to Creditors in the first Keeves affidavit.
It is, with respect, entirely unclear why that submission was made, or how it may have been supported.
In any event, the world has moved on by the making of the Arbitrator's award for the giving of security for costs, and that security having been provided.
More significantly, the Owner initially sought to rely on certain factual matters to do with:
1.the works said to have been performed or not performed under the Contract; and
2.amounts that the Owner paid to other builders or contractors to complete the works the subject of the Contract.[37]
[37] See, for example, the Owner's outline of submissions filed 4 June 2025 [15].
Those factual assertions were said, in the Owner's submissions, to be supported by the 'Precis' document which was provided to the Builder's Administrators,[38] and to which I referred above.
[38] Part of 'PRK-3' at page 30 of the first Keeves affidavit.
Mr Keeves adopted the popular formulaic and perfunctory paragraph in his first affidavit:
[3]Unless otherwise stated, I make this affidavit from my own knowledge. Where I make statements based on information provided to me by another person, I identify that person and believe that information to be true.

However, the affidavit did not depose to any proper basis of information and belief for any of the matters in the Precis.[39]
[39] See the summary of the applicable rules and principles in Antz Inya Pantz Coffee Pty Ltd v Muhl [2023] WASC 320 at [11], [18], [22].
Counsel for the Owner did not point to any proper basis on which that evidence might have been admissible.
Again, the significance of that has been largely diminished by the Owner now accepting[40] that there is an arguable case for the Caveat. But, nonetheless, it remains remarkable that what was presumably intended to be a serious affidavit should not comply with the basic rules which would have made those aspects admissible. If, which was not ultimately the case, the Owner had sought to rely on the Precis for the truth of its contents, then I would have ruled that part of Mr Keeves' evidence inadmissible.

The Owner's present position

[40] That acceptance was first made by the Owner's supplementary submissions filed after hours on Friday, 22 August 2025 prior to the hearing on Monday, 25 August 2025.

The Owner now, for the first time, submits that if the Caveat is to be extended then it should be extended only after being amended to be a 'subject to claim' caveat rather than its present form of an absolute caveat.[41]
[41] Owner's supplementary submissions filed after hours on Friday, 22 August 2025 [11].
The Owner further now contends that the balance of convenience overwhelmingly favours removal of the Caveat and at a minimum should be replaced with an undertaking from the Owner. The matters relied on by the Owner are:
1.the Caveat continues to effect a significant and ongoing prejudice to the director of the Owner;
2.there is essentially no prejudice to the Builder if the Caveat is removed in favour of the Owner's undertaking to retain the sum of $[Redacted][42] of the sales proceeds as that sum adequately secures the Builder's claim;
3.the value of the Property far exceeds the amount claimed by the Builder; and
4.the undertakings provided to support the Caveat are valueless because the two individuals face insolvent trading claims and have given personal guarantees, the total of which is $18 million. This submission was made prior to the undertakings proffered by the Liquidators, as noted above.
[42] This figure is derived from the figure which appeared in [31] above.

Consideration and disposition

I have approached the disposition of the application on the basis that:
1.there is a serious question to be tried that the Builder has an arguable claim to support the extension of the Caveat by reference to, at least, its claims under cl 13(c) of the Contract and the Caveat provision at cl 6; and
2.the Builder's arguable claim in the Arbitration and under the Contract is for at least $[Redacted];[43] which is the amount of the alternative security being offered, now, by the Owner.
[43] This figure is derived from the figure which appeared in [31] above.
There appear, essentially, to be three issues, now, to be resolved:
1.if the Caveat is to be extended, should it be amended to be a 'subject to claim' Caveat;
2.whether the Caveat should be continued, or whether the Caveat should not be extended in favour of the Owner's proffered alternative security; and
3.if the Caveat is to be 'replaced' by the Owner's alternative security, will an amount limited to the Builder's arguable claims in the Arbitration be sufficient as a matter of discretion or would it need to include an amount for the Builder's costs if it is successful in the Arbitration.
As will be seen, the issues are not completely independent in my view.

Absolute caveat or subject to claim caveat

I did not find the Owner's submissions in this respect easy to follow.
As I understand it, the Owner accepts that the first part of cl 6 of the Contract, quoted above, effectively charged the property but that the 'second part' of the clause which authorises and consents to the lodging of an absolute caveat is not enforceable because that provision conflicts with the scheme and purpose of the TL Act as it applies to caveats.
The Owner placed great reliance on the decision in Graham v Chappell.[44] In that case, the relevant clause provided:
The Owner irrevocably authorises and consents to the Builder lodging an absolute caveat in respect of the Site to protect the Builder's interests herein.
[44] Graham v Chappell (1993) 9 WAR 157 (White J).
The Owner, as I understood it, sought to submit that the use of 'absolute caveat' in the present cl 6 of the Contract could not, on the authority of Graham v Chappell, allow the lodging of an absolute caveat.
However, I do not understand Graham v Chappell to stand for that proposition (if I have understood the Owner's submission correctly).
As White J observed in that case, it was:
… common cause that there was never any express charging of the land in favour of the plaintiff by the first defendants.[45]
[45] Graham v Chappell 159.
White J held that the clause, as then formulated, did not:
… in terms, charge the property or create any interest in land in favour of the builder.[46]
[46] Graham v Chappell 160.
Obviously enough, the present cl 6 of the Contract, as quoted above, is both a charging provision (which was not the case in Graham v Chappell) and a provision authorising the lodging of an absolute caveat. On the clause in this case, I have not found Graham v Chappell, with respect, to be of assistance.
In Coco C'Bay Association (Inc) v Paddison,[47] Solomon J recorded a submission made to him (by reference to Kalx Capital Securities Pty Ltd v Richardson 1 Pty Ltd [No 2][48]) that, where a caveator claims an interest as a chargee, an absolute caveat is not appropriate.[49]
[47] Coco C'Bay Association (Inc) v Paddison [2022] WASC 5 (Coco C'Bay).
[48] Kalx Capital Securities Pty Ltd v Richardson 1 Pty Ltd [No 2] [2021] WASC 302 (Allanson J) (Kalx [No 2]).
[49] The submission was recorded by Solomon J in [23].
His Honour stated, later:
[80]I should add that in my respectful view, it is going too far to say as the defendants appear to submit, that an interest as chargee can never justify an absolute caveat. I doubt that was intended by the observation in Kalx Capital referred to above on which the defendants rely. It will often, if not usually, be the case that the interests of a chargee can be adequately preserved by a subject to claim caveat. But for the reasons I have explained, the particular circumstances of this matter are different.
With respect, I consider that Solomon J was correct to reject the submission that was made in its terms.
It is correct that in Kalx [No 2] Allanson J stated:
A caveat must not go beyond the legitimate claim necessary to protect the caveator's rights. Where the caveator claims an interest as a chargee, an absolute caveat is not appropriate.[50] (citations omitted)
[50] Kalx [No 2] [10].
In support of the first sentence of the above quotation, his Honour cited Hasluck J at [342] of Midland Brick Company Pty Ltd v Welsh[51] and Murphy J (as he then was) at [44] of Gangemi v Gangemi.[52]
[51] Midland Brick Company Pty Ltd v Welsh [2006] WASC 122; (2006) 32 WAR 287 (Midland Brick).
[52] Gangemi v Gangemi [2009] WASC 195 (Gangemi).
No authority was cited by Allanson J for the second sentence in the above quotation.
In Midland Brick the Court was not concerned with a charge. That was also the case in Gangemi and, so, Murphy J's (as he then was) citation of paragraph [342] from Midland Brick was not in the context of a charge.
The Owner cited[53] Palazzo Homes v Goh[54] at [5] - [6] and Deputy Commissioner of Taxation v Corwest Management Pty Ltd[55] at 131 to support the submission that the appropriate form of the caveat here was a subject to claim caveat, not an absolute caveat.
[53] First defendant's supplementary submissions filed 22 August 2025 [11].
[54] Palazzo Homes v Goh [2010] WASC 407 (Palazzo Homes).
[55] Deputy Commissioner of Taxation v Corwest Management Pty Ltd [1978] WAR 129 (Corwest).
It does not appear from the judgment of Le Miere J in Palazzo Homes that the clause which was said to support the caveat by its terms provided for an absolute caveat. So, the observations made by Le Miere J in the cited paragraphs must, in my view, be seen in that light.
Further, as Le Miere J recorded, it was common ground in that case that the absolute caveat went beyond what was necessary to protect the plaintiff's rights and it was conceded that the plaintiff should have lodged a subject to claim caveat not an absolute caveat.[56] Obviously enough, his Honour accepted the parties' common position.
[56] Palazzo Homes [6].
In Corwest, the Deputy Commissioner had lodged an absolute caveat for a tax debt which was said, by virtue of certain statutory provisions, to operate as an equitable charge on the relevant land. So, it may be immediately seen that the Court was not dealing with a charge granted by contract nor a caveat provision analogous to the one under consideration here.
Burt CJ said:
In my opinion the caveat was irregular upon its face in that it is expressed to be an absolute prohibition of dealings when in the circumstances it should have been expressed to operate only to protect the particular interest claimed.[57]
[57] Corwest at p 131 l 24.
However, as is plain, that was an obiter observation in that the Court held that the Deputy Commissioner had failed to establish that the other relevant party had an interest in the land to which the asserted equitable charge could attach.[58] And, further and in any event, the statutes relied on by the Deputy were held not to create an equitable charge.[59]
[58] Corwest at p 131 l 43 (Burt CJ); p 135 l 5 (Wickham J).
[59] Corwest at p 133 l 1 (Burt CJ); p 135 l 23 (Wickham J).
The Owner further cited Pascoe v McKessar[60] at [61] and Woodford v Pattinson [No 2][61] at [43] - [44].
[60] Pascoe v McKessar [2019] WASC 229 (Hill J).
[61] Woodford v Pattinson [No 2] [2017] WASC 334 (Pritchard J as she then was).
In Pascoe v McKessar, at the paragraph cited by the Owner, her Honour referred back to [5] of Palazzo Homes without elaboration (I say without criticism). So that citation of Pascoe v McKessar does not take the matter any further.
With respect, the same observation may be made of the cited paragraph in Woodford v Pattinson [No 2].
None of the cases to which I was referred, or have considered, except Coco C'Bay, contained a clause which both charged the relevant property and authorised the lodging of an absolute caveat.
With respect, I agree with Solomon J that it is going too far to say that interest as chargee can never justify an absolute caveat.[62]
[62] Coco C'Bay [80].
While I accept that the statement 'a caveat must not go beyond the legitimate claim necessary to protect the caveator's rights' has been regularly adopted in many judgments in this Court, I do not accept that it necessarily means that a clause which consensually provides for the lodging of an absolute caveat (with an appropriate charging provision) means that the caveator cannot maintain an absolute caveat to protect their rights.
If the effect of the Owner's submissions is that, as Burt CJ observed in Corwest, the Caveat was 'irregular upon its face' then I would not accept that submission because of the terms of cl 6 of the Contract here.
If, rather, the commonly cited principle (a caveat must not go beyond the legitimate claim necessary to protect the caveator's rights) is invoked here by the Owner as a discretionary matter then that is considered further below.
In any event, I do not consider that the Builder's position is unarguable. That is, I consider it is arguable, for present purposes, that cl 6 in its present form justifies the lodging and maintenance of an absolute caveat. Where the charge and an absolute caveat have been agreed to in the Contract, then it is arguable that the absolute caveat does not go beyond the caveator's legitimate interests. Those interests relevantly were created by the terms of the contractual provision.

The value of the undertakings

A factor, as I understand it, which was relied upon the Owner to submit that it would not be appropriate to continue the Caveat is the 'status' of the undertakings provided by Messrs Reynolds and Kaminski on behalf of the Builder.
As noted above, on the day of the hearing, the Builder proffered an undertaking as to damages by one of the liquidators, Mr Shaw, in his personal capacity.
The Court thus had three personal undertakings at the hearing but, as both counsel accepted, no evidence as to the financial position of any of the individuals proffering the undertakings as to damages.
The Owner submitted by reference to the fourth Keeves affidavit (at [7(d)]) that the undertakings provided by Messrs Reynolds and Kaminski were valueless. That submission initially overlooked [9] in the same affidavit where the Liquidators had stated to the Owner that they did not accept the Owner's proposition that the undertakings of Messrs Reynolds and Kaminski were 'essentially valueless'.
Counsel for the Owner ultimately submitted that there was mixed evidence on the point.
In all of the circumstances, I am not persuaded that, on the material before the Court, any or all of the three initial undertakings or the two subsequent undertakings proffered as to damages are valueless.
Counsel for the Builder foreshadowed at the hearing filing further undertakings as to damages following the Owner's submissions that the three initial undertakings as to damages lacked value. Two days after the hearing, Mr Shaw and Mr Albarran filed further undertakings as to damages.
Those two undertakings filed 27 August 2025, while, again, on their face are by Messrs Shaw and Albarran personally, both stated that:
I have a right of indemnification from Hall Chadwick (NSW) Pty Ltd in respect of any compensation that may be ordered to be paid under this undertaking.
The position I expressed when there were the three undertakings filed up to and including on 25 August 2025, is only reinforced by the subsequent undertakings as to damages filed 27 August 2025.
I would not refuse the Builder's application either on the basis that, as a matter of law, the Caveat was bad because it was not supported by an undertaking as to damages of value; nor as a matter of discretion.

Should the Caveat be extended: prejudice

Mr Lisle wishes to cause the Owner to sell the Property.
Mr Lisle deposed to the Property being 'a substantial asset' in his divorce proceedings, while at the same time being his 'current residential premises'.[63]
[63] Mr Lisle's affidavit [6], [7].
Principally, the Owner contends that the Caveat, consequently, is causing prejudice to Mr Lisle.
The submission that the Caveat is causing significant and ongoing prejudice to Mr Lisle is somewhat curious in that he is not the first defendant and no such prejudice is asserted on the part of the first defendant.
There is no evidence as to the shareholders of the first defendant. That may be neither here nor there as it appears that the first defendant is a trustee for the 'Cooah Trust'. There was no evidence before the Court as to the terms of that trust. While accepting that there was no such evidence, counsel for the Owner submitted that the Court could infer that Mr Lisle was a beneficiary of the trust. Whether or not that inference may be drawn, I have difficulty in accepting that Mr Lisle's asserted prejudice should be taken, effectively, as being equivalent to the Owner suffering that prejudice.
If the Owner's submissions are intended to suggest that the Owner and Mr Lisle are one in the same, then the Court is effectively being asked to look through not just a corporate ownership but through the trust structure without any particular evidence as to the terms of that.
Even assuming that Mr Lisle's prejudice is a relevant consideration to the exercise of the Court's discretion, that must be balanced against any prejudice to the Builder.
It appears to be common ground that the Property is the principal asset of the Owner. Mr Lisle's stated intention (for the Owner) is to sell the Property for the purposes of his divorce proceedings and to purchase another property.[64] So, if against the Owner's expectations, the Builder were to be successful in the Arbitration, then there would appear to be force in the submission made by the Builder that the only asset to which the Builder may have recourse in the event it is successful in the Arbitration would be the monies deposited as a result of the Owner's proffered undertaking.
[64] Mr Lisle's affidavit [6], [7].
I do not consider that the Owner's asserted prejudice outweighs that of the Builder, if the Caveat is not extended.

The alternate security proffered

As I understand it, the Owner's ultimate fallback position if the Court were to determine that the Caveat should be extended (whether as an absolute caveat or a subject to claim caveat) is that any balance of convenience in favour of the extension is outweighed by its proffered undertaking as, in effect, a replacement security.
The Owner's suggested undertaking was 'Annexure A' to its supplementary submissions filed 22 August 2025.
As I identified above, there is a live issue as to whether the quantum of the Owner's proffered undertaking is sufficient to sway the balance of convenience as the Owner contends.That is, whether the Owner's proffered undertaking (limited to the Builder's claims in the Arbitration under cl 13(c) of the Contract) sufficient to move the Court's discretion in favour of the Owner.
As was made plain at the hearing, I do not consider that it is for the Court to suggest to the Owner or find what might be an 'acceptable' amount in its proffered undertaking.[65] Rather, it seems to me that I am to decide the matter on the Owner's proffered undertaking as it is, rather than bargain with the Owner as to what undertaking would secure a favourable exercise of discretion
[65] It may be that I am taking a different view from what at least some other Courts have on this aspect: see Renascent Interiors & Refurbishers Pty Ltd v ASEL [2002] NSWSC 345 [17] (Barrett J) (Renascent Interiors).
While not accepting it would be sufficient, the Builder submitted that if its present costs were to be assessed on a party/party basis or some discount was thought appropriate, a sum of $[Redacted] to be allowed for its costs would be appropriate.[66]
[66] Plaintiff's reply submissions filed 21 August 2025 [25]. This was described as a conservative approach in [26] of the same submissions.
The Owner submits that the alternate security need not make provision for the costs of the Arbitration as such costs would not be monies 'payable under' the Contract. That was not quite the submission made by the Builder.[67]
[67] See the plaintiff's reply submissions filed 21 August 2025 [19].
I have not considered whether it is arguable that the costs of the Arbitration, which has taken place pursuant to cl 16(a) of the Contract,[68] are potentially payable under the Contract for the purposes of cl 6.
[68] 'MJL-6' at p 37 of the first Lang affidavit would be within the words of 'monies that … may become payable hereunder' in cl 6 of the Contract. That is not the way the Builder put its case. I should not be taken as expressing any view as to the arguability of that proposition.
Rather, the Builder submits that if the Caveat is not to be maintained in the exercise of the Court's discretion then, in effect, the Builder should not be in a worse position than it would have been if the Caveat had been maintained.
The Builder referred to two New South Wales decisions in Gibson v Co‑ordinated Building Services Pty Ltd[69] and Renascent Interiors & Refurbishers Pty Ltd v ASEL.[70]
[69] Gibson v Co‑ordinated Building Services Pty Ltd[69] [1989] BPR 9630; [1989] ANZ Com R 587 (Young J, as he then was) (Gibson).
[70] Renascent Interiors (Barrett J, as he then was).

Because the publication of the reasons in Gibson predated paragraph numbering in judgments, I have reproduced some of the quoted passage from that case on which the Builder relied:
Accordingly the only question left is whether the Gibsons should only be permitted to have a withdrawal of the caveat if they secure the builder against liability for costs in the building case as well as the claim under the contract.
…
In my view, the security should be for the greater amount. The builder has been given a contractual right to maintain a caveat. If that contractual right were maintained you would in effect be able to maintain his caveat up until the hearing of the building case and ensure that no other dealing was registered with respect to the land. This would give the builder a considerable advantage even though his security was only in respect of the claim and not the costs. Where the owner seeks to remove that caveat then it seems to me that it is only conscionable that the owner ensure that the builder is not disadvantaged by the court giving the owner the boon of providing a substitute security.
…
The builder is entitled if there is to be a substitute security to such security as will secure him not only for the claim but for the reasonable costs of litigation.[71]
[71] Gibson v Co‑ordinated Building Services Pty Ltd [1989] BPR 9630; [1989] ANZ Com R 587: emphasis in the Builder's supplementary submissions filed 21 August 2025 [16].
In Renascent Interiors, Barrett J was satisfied that:
1.the relevant clause created an equitable charge;
2.there was a sufficiently arguable case that monies of some amount were secured by that charge;[72]
3.the plaintiff was entitled to maintain its caveat subject to the balance of convenience;[73]
4.the entitlement of a caveator who has a caveat in proper form and substance to maintain the caveat is susceptible to being overcome by balance of convenience issues;[74] and
5.if the registered proprietor was prepared to put up an alternative security, then the Court will remove the caveat even if the caveat may be completely maintainable.[75]
[72] Renascent Interiors [11].
[73] Renascent Interiors [11], [13].
[74] Renascent Interiors [14].
[75] Renascent Interiors [14], [15], by reference to earlier decisions of Young J, including Gibson.
Following Gibson, Barrett J held that the legal costs were 'an appropriate element in the calculation' of the amount of the alternative security in the Court's exercise of its discretion.[76]
[76] Renascent Interiors [21] - [23].
As I understand the cases of Gibson and Renascent Interiors, they proceed on the basis that:
1.a caveator has an entitlement to maintain its caveat if it is in proper form and has substance;
2.the balance of convenience may (and usually will) be swayed against the continuation of such caveat if an adequate security is provided;
3.to so sway the balance of convenience, it is relevant to consider whether the provision of the alternative security leaves the caveator in materially the same position as though the caveat was maintained.
Expressly, in both of those cases, their Honours proceeded on the basis that the costs of litigating the dispute were not caught by the charging clause. Rather, as Barrett J said, it was not that legal costs were secured by the charge:
… but more by the need to ensure that someone whose caveat is in effect taken away from them in circumstances where there is a right to maintain, it should be treated in a way which does not prejudice any of his potential claims, including a claim for costs.[77]
[77] Renascent Interiors [22], [23].
The Owner submitted that the two decisions were wrongly decided, as I understand it, as being poorly reasoned and against the policy of the TL Act. I do not accept that submission. With respect, to take the costs into consideration as a matter of discretion seems to me to be open. Further, their Honours start from the unremarkable position that the caveator is entitled to maintain the caveat as being what it bargained, contractually, for.
In the current circumstances, I have found that the Builder has a contractual right, or a sufficiently arguable claim to a contractual right, to an absolute caveat over the property.
I consider in line with the authorities that the starting position is that the Builder is, in those circumstances, entitled to maintain the Caveat until further order.
Where the Owner wishes to sway the balance of convenience against the maintenance of the Caveat, then the amount of the security can, and should be, looked at to determine whether it leaves the caveator in materially the same position as they would be in if the Caveat were to be maintained.
Here, in my view, the Owner's proffered undertaking would effectively leave the Builder in a significantly worse position than if the Builder were able to maintain its Caveat which it has by virtue of the previous agreement with the Owner in the Contract.
In those circumstances, I do not consider that the Owner's proffered undertaking sways sufficiently my assessment as to the balance of convenience in favour of the Owner.
That is especially so in the current circumstances where if the Caveat is not maintained then Mr Lisle's stated intention is to sell the Property and use the balance of the sale proceeds to affect a divorce settlement and purchase another property. That, in my judgment, may well leave the Builder in a materially worse position than if it maintains the Caveat.
Lastly, as a matter of going to discretion and the balance of convenience, the Owner submitted that the value of the Property the subject of the Caveat was at least $[Redacted]. The point of the submission was to indicate that the value of the Property greatly exceeded the claims made by the Builder in the Arbitration.
As accepted by counsel for the Owner at the hearing, the value of the Property may well not be of great significance given Mr Lisle's stated intention as to the balance of any sale proceeds (following the retention of the amount in the Owner's proffered undertaking). That is, in short point, there is a real risk that the Property might be sold and the balance of the sale proceeds applied before any final arbitral award was made.
I was invited to conclude that the delivery of the award and the finalising of any sale of the Property would be close in time. However, with respect, that seems to be a purely speculative exercise without any evidential basis before the Court and I decline that invitation.

Owner's application for confidentiality orders

By chamber summons filed 22 August 2025, the Owner sought orders that parts of certain filed affidavits and submissions (relevant material) should be subject to restrictions in O 67B r 5(3) of the Rules of the Supreme Court 1971 (WA) (RSC) (Confidentiality Application). I have attached as a confidential 'Annexure A' to these reasons the list of the relevant materials in the Confidentiality Application.
Two things may immediately be noted about the Confidentiality Application.
The first is that the parties have been filing affidavits and submissions in this Court (some of which are subject to the Confidentiality Application) from April until 21 August 2025 without seeking to invoke any confidentiality provisions in the Rules: for example, cf O 67A r 10(1).
The first hint that any of the material was confidential was by the Owner's chamber summons supported by Mr John's affidavit, both of which were filed after hours on Friday, 22 August 2025.
The second is that the Confidentiality Application was supported by the Builder at the hearing.
In support, the following was deposed to by Mr John:
10.Pursuant to section 27E of the Act, the Confidential Material is to be kept strictly confidential and may only be disclosed in certain circumstances, including with the consent of the parties to the Arbitration. If the Confidential Material were disclosed other than to the Court, the confidentiality associated with the Arbitration would be lost, and there is a risk of prejudice to the commercial interests of the first defendant, including in respect of the property the subject of the caveat.
11.Consequently, the first defendant seeks orders restricting access to the Confidential Material pursuant to Order 67B rule 5 of the Rules of the Supreme Court 1971 (WA).
12.In my opinion, the orders that are sought restricting access to the Confidential Material are appropriate, and are in the best interests of the parties, and the administration of justice, having regard to the provisions of the Act and the potential impact on the parties if disclosed.[78] (original emphasis)
[78] Mr John's affidavit made and filed 22 August 2025.
While Mr John deposed at [10] quoted above that there was a risk of prejudice to the commercial interests of the Owner, no substance or detail was put to that bald submission. Where the Owner is a trustee company and the Property is intended by Mr Lisle to be sold for the purposes of a divorce settlement and his buying another property, it was unclear what the 'commercial interests' of the Owner were or could be.
Further, Mr John's opinion (as expressed in [12] quoted above) stated in that form (without elaboration), could have, with respect, no probative force.
Outside of the provisions of the Commercial Arbitration Act 1984 (WA), I consider that the parties have not identified any interests of justice which militate in favour of the orders now sought. I do not see any particular interests, on the materials before the Court, favouring the sought orders.
There was no evidence before the Court as to the terms of the arbitration agreement between the parties. So, in my view, having regard to the above observations as to the Owner's other submissions, the question really comes down to the position under the Commercial Arbitration Act.
Counsel for the Owner submitted that the material which was sought to be made confidential subject to the sought orders had to remain confidential by reason of the Commercial Arbitration Act and, in particular, by s 27E(2) of that Act.
The Owner's submissions seemed to conflate the provisions of the Commercial Arbitration Act with the terms of O 67B. However, different language is used in the Commercial Arbitration Act ('disclosed') from that used in O 67B ('an order that restricts access').
Counsel for the Owner did not accept that the parties, having filed the relevant materials between April 2025 and 21 August 2025, should be taken to have consented to the disclosure of the information pursuant to s 27F(2) of that Act.
Counsel for the Owner submitted that the Confidentiality Application made on 22 August 2025 showed that the parties did not consent to disclosure.
Here, the parties have taken certain voluntary steps outside of the Arbitration. Firstly, the Owner chose to cause the Registrar of Titles to send the notice. I cannot imagine that the Owner was surprised when the Builder commenced proceedings in this Court to extend the Caveat. Nonetheless, that was a choice made by the Builder.
Neither side objected to the filing of the relevant materials without, for example, advising the Court pursuant to, for example, O 67A r 10, and, indeed, both continued to do so over months.
In all of the circumstances, objectively, it appears to me that the parties may have been taken to have consented, relevantly, within s 27F(2) of the Commercial Arbitration Act to some disclosure of those materials.
However, as will be seen, I do not consider that the application turns on that issue ultimately.
I note that there is a well-known line of authority identified by the Victorian Court of Appeal in State of Victoria v Intralot Australia Pty Ltd[79] at [20] and [55][80] to the effect that usually a statutory prohibition on disclosure will not be interpreted as including disclosure in the context of a proceeding in a court.
[79] State of Victoria v Intralot Australia Pty Ltd [2015] VSCA 358.
[80] See also Hall v Aldridge [2024] WASC 155 (Cobby J) at [31].
That leaves some further issues to be addressed on the Owner's Confidentiality Application.
The first remaining issue is whether, by the filing of the relevant materials the parties have 'disclosed' them other than to the Court.
The second remaining issue is whether by reading and relying upon (some of) the relevant materials in open court at the hearing, the parties have disclosed that material more widely than to the Court.
As to the first remaining issue, the Owner's submissions on these orders did not engage with O 67B r 6 which provides for 'every person's' access (without further order) to certain documents on the Court's file. It appears clear from the applicable rules that no one could access any relevant material as filed without a further order of the Court following an application under, for example, O 67B r 8, and the parties would be able to be heard on that application.
As to the affidavits which were read and the submissions made or referred to in the hearing, I consider that, without a further order, no one could access the relevant material from the Court's file, simply because it was read or referred to in Court: see O 67B r 6(4)(c) and the relevant Table.
That suggests strongly that there is no particular reason in the interests of justice to make the sought orders about that relevant material now. That is because there has been no disclosure (outside of to the Court) and so no need to restrict access.
I would order, however, that any application to inspect any of the relevant material should be referred to me to ensure that the parties can be heard.
However, having regard to items 8, 9 and 10 of the Table to O 67B r 6(4) some of the substance of the relevant material may be accessible to any person from the Court file.
So, in those circumstances, given the provisions of the Commercial Arbitration Act, I shall make orders under O 67B r 5 restricting access to those parts of these reasons and the transcript from the hearing which disclose the detail, but not the effect, of the relevant material.
To that end, I will give the parties an opportunity to provide submissions, and hopefully an agreed position, as to which parts of the transcript and these reasons should be so restricted.
In my view, it is important in the interests of justice that as little of these reasons are restricted as is strictly necessary.
That is not because of anything particularly to do with this matter or the reasons, but because of the very real importance that attaches to the open administration of justice.
However, until the parties have had that opportunity, I will not publish these reasons publicly.

Final disposition

For the reasons above, I would continue the order made by Hill J on 17 April 2025 which effectively extends the operation of the Caveat until further order.
And, for the above reasons, I will make some limited restriction orders pursuant to O 67B r 5 on the Owner's chamber summons filed 22 August 2025.
I will hear the party as needs be as to:
1.the form of the final orders;
2.the masking or restrictions necessary to the transcript and these reasons to give effect to these reasons; and
3.any orders as to costs.

Confidential
Annexure A

[Redacted]

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IF
Associate to the Hon Justice Howard
4 SEPTEMBER 2025