JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: METECNO PTY LTD -v- SMITH [2023] WASC 17
CORAM: STRK J
HEARD: 1 FEBRUARY 2023
DELIVERED : 1 FEBRUARY 2023
PUBLISHED : 2 FEBRUARY 2023
FILE NO/S: CIV 1066 of 2023
MATTER :IN THE MATTER OF THE TRANSFER OF LAND ACT 1893 (WA) s 138
BETWEEN: METECNO PTY LTD
Plaintiff
AND
AMBROSE WAYNE SMITH
First Defendant
THE REGISTRAR OF TITLES
Second Defendant
Catchwords:
Real property - Caveats - Whether the plaintiff has shown cause why the caveat should be removed - Turns on own facts
Legislation:
Transfer of Land Act 1893 (WA) s 138
Bankruptcy Act 1966 (Cth) s 58
Result:
Application granted
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr P Lochore |
| First Defendant | : | In Person |
| Second Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Kanji & Co Solicitors |
| First Defendant | : | In Person |
| Second Defendant | : | No appearance |
Case(s) referred to in decision(s):
Australian Broadcasting Corp v O'Neill [2006] HCA 46; (2006) 227 CLR 57
Avco Financial Services Ltd v White [1977] VR 561
Bashford v Bashford [2008] WASC 138
Brogue Tableau Pty Ltd v Binningup Nominees Pty Ltd [2007] WASCA 179; (2007) 35 WAR 27
Composite Buyers Ltd v Soong (1995) 38 NSWLR 286
Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42
Depsun Pty Ltd v Tahore Holdings Pty Ltd (1990) ANZ Conv Rep 334
Deputy Commissioner of Taxation v Corwest Management Pty Ltd [1978] WAR 129
Elliott v Blanshard (1970) 17 FLR 7
Gangemi v Gangemi [2009] WASC 195
J and H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546
Kerabee Park Pty Ltd v Daley (1978) 2 NSWLR 222
KWS Capital Pty Ltd v Love [2013] WASC 294
Leros Pty Ltd v Terara Pty Ltd [1992] HCA 22; (1992) 174 CLR 407
Magnolia Private Capital Pty Ltd v Floate [2022] WASC 131
Mario Casella & Sons Builders Pty Ltd v Duckworth [2005] WASC 245
Martin v Official Trustee in Bankruptcy [1990] Tas R 65
Midland Brick Company Pty Ltd v Welsh [2006] WASC 122
Midwarren Estates Pty Ltd v Retek & Stivic [1975] VR 575
Modular Forms Pty Ltd v Cecich [2015] WASC 177
Morris Finance Ltd v Brown (2017) 350 ALR 86; [2017] FCAFC 97
Palazzo Homes Pty Ltd v Goh [2010] WASC 407
Percy & Michele Pty Ltd v Gangemi [2010] VSC 530
Perron Investments Pty Ltd v Tim Davies Landscaping Pty Ltd [2009] WASCA 171
Porter v McDonald [1984] WAR 271
Queensland Estates Pty Ltd v Co-ownership Land Development Pty Ltd [1969] Qd R 150
Re Charge Card Services Ltd [1987] Ch 150
Re The Victorian Farmers' Loan and Agency Co Ltd (1897) 22 VLR 629
Spunter Pty Ltd v Hall [2006] WASC 6
Sulinmo Properties Pty Ltd v Malloney (1985) ANZ Conv Rep 25
Veloudos v Young (1981) 56 FLR 182
Yaran Holdings Pty Ltd v Goldsmith 7 Pty Ltd [2014] WASC 171
Table of Contents
Continue reading Metecno Pty Ltd v Smith
Sign in free to access the full text
- AGLC
- Metecno Pty Ltd v Smith [2023] WASC 17
- Case
- [2023] WASC 17
- Decision Date
CaseChat Overview and Summary
The court found that Smith had not demonstrated a proprietary interest in the land that could support a caveat. Smith's claim was based on an alleged oral agreement, which the court found lacked the necessary certainty and was not a recognised proprietary interest at law or in equity. The court emphasised that a caveatable interest must be a proprietary interest that exists at the time the caveat is lodged and cannot be used to protect a future interest. The court also considered the balance of convenience, finding that Metecno would suffer significant prejudice if the caveat remained in place. The court concluded that the caveat should be removed.
The Supreme Court of Western Australia ordered the removal of the caveat entered by Smith over the land in question. The court found that Smith had not demonstrated a proprietary interest in the land that could support the caveat, and that the balance of convenience favoured Metecno. The court exercised its discretion under section 138 of the Transfer of Land Act, considering the particular circumstances of the case. The caveat was ordered to be removed, allowing Metecno to proceed with its proposed dealings over the land.
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
On the application, the question for determination is whether or not the caveator can demonstrate they may have an interest in land which is capable of supporting a caveat. By its nature, a caveatable interest must be a proprietary interest in land.[17] This requires the interest to be a proprietary interest that is recognised at law or in equity.[17] Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42, 50. A caveat is a form of statutory injunction which prevents registration of a dealing against land until the caveator has been given a reasonable opportunity to justify the caveat by pursuing such remedies as they may have.[18] The caveator must satisfy the court that, on the evidence presented to the court, their claim for an interest in the property raises a serious question to be tried or whether it may have substance.[19] Even if a claim may have substance, the caveat might not be extended having regard to factors including the apparent strength or weakness of the caveator's claim.[20] A caveat will not be removed unless the claim to an estate or interest in the land appears to be without foundation.[21][18] J and H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546, 552, 558; Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (44 ‑ 45); Brogue Tableau Pty Ltd v Binningup Nominees Pty Ltd [2007] WASCA 179; (2007) 35 WAR 27 [68].[19]Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (48 ‑ 50).[20] KWS Capital Pty Ltd v Love [2013] WASC 294 [32] ‑ [36].[21] Porter v McDonald [1984] WAR 271, 276; Custom Credit Corp Ltd v Ravi Nominees Pty Ltd (48); Deputy Commissioner of Taxation v Corwest Management Pty Ltd [1978] WAR 129, 141; Mario Casella & Sons Builders Pty Ltd v Duckworth [2005] WASC 245 [26]; Yaran Holdings Pty Ltd v Goldsmith 7 Pty Ltd [2014] WASC 171 [43]. A caveatable interest must exist at the time a caveat is lodged. A caveat cannot be lodged to protect a future interest.[22] The caveat must not go beyond the legitimate claim necessary to protect the rights of the caveator.[23] Removal of the caveat will, in many cases, have the effect of destroying the benefit of the proprietary interest claimed in the caveat.[24][22] Martin v Official Trustee in Bankruptcy [1990] Tas R 65, 69; Gangemi v Gangemi [2009] WASC 195 [38] - [45].[23] Midland Brick Company Pty Ltd v Welsh [2006] WASC 122 [342].[24] Custom Credit Corp Ltd v Ravi Nominees Pty Ltd (50). In the exercise of the court's discretion under s 138 of the Transfer of Land Act, the balance of convenience is a relevant factor. There is no rule of law that once an arguable case for a caveatable interest is established, removal of the caveat will only be ordered if it is shown that the 'circumstances are so unusual' that the caveat should be removed. The discretion is to be exercised having regard to the particular circumstances of the case.[25][25] Magnolia Private Capital Pty Ltd v Floate [2022] WASC 131 [12]; First defendant's submissions par 65.