Metecno Pty Ltd v Smith

Case [2023] WASC 17


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

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Details
AGLC
Metecno Pty Ltd v Smith [2023] WASC 17
Case
[2023] WASC 17
Decision Date

CaseChat Overview and Summary

Metecno Pty Ltd applied to the Supreme Court of Western Australia for an order to remove a caveat entered by Smith over certain land. Smith lodged the caveat in order to protect an interest he claimed in the land. Metecno argued that Smith had no valid interest in the land and sought the removal of the caveat. The court had to determine whether Smith could demonstrate that he had a proprietary interest in the land which was capable of supporting a caveat. This involved assessing whether Smith's claim raised a serious question to be tried and whether it had substance, while also considering the strength of his claim. The court had to balance the interests of both parties, including the potential prejudice to Metecno if the caveat was not removed.

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

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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

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.