MODULAR FORMS PTY LTD -v- CECICH [2015] WASC 177

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASC 177
Published:	22/05/2015
Case No:	CIV:1264/2015	Heard:	26 FEBRUARY 2015
Coram:	PRITCHARD J	Delivered:	26/02/15
No of pages:	5	Judgment Part:	1 of 1
Result:	Application granted
Category:	B
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Parties:	MODULAR FORMS PTY LTD (ACN 154 198 599) MIRO CECICH HELEN CECICH REGISTRAR OF TITLES
Catchwords:	Caveats Absolute caveat Extension Application for extension of caveat Serious question to be tried
Legislation:	Transfer of Land Act 1893 (WA), s 183C
Case References:	Australian Broadcasting Corp v O'Neill [2006] HCA 46; (2006) 227 CLR 57 Bashford v Bashford [2008] WASC 138 Perron Investments Pty Ltd v Tim Davies Landscaping Pty Ltd [2009] WASCA 171

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : MODULAR FORMS PTY LTD -v- CECICH [2015] WASC 177 CORAM : PRITCHARD J HEARD : 26 FEBRUARY 2015 DELIVERED : 26 FEBRUARY 2015 PUBLISHED : 22 MAY 2015 FILE NO/S : CIV 1264 of 2015 BETWEEN : MODULAR FORMS PTY LTD (ACN 154 198 599)

Plaintiff

AND

MIRO CECICH

HELEN CECICH

First Defendants

REGISTRAR OF TITLES

Second Defendant

Catchwords:

Caveats - Absolute caveat - Extension - Application for extension of caveat - Serious question to be tried

Legislation:

Transfer of Land Act 1893 (WA), s 183C

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff : Mr A Metaxas

First Defendants : Mr M C Davies

Second Defendant : No appearance

Solicitors:

Plaintiff : Metaxas & Hager

First Defendants : Tottle Partners

Second Defendant : No appearance

Cases referred to in judgment:

Australian Broadcasting Corp v O'Neill [2006] HCA 46; (2006) 227 CLR 57
Bashford v Bashford [2008] WASC 138
Perron Investments Pty Ltd v Tim Davies Landscaping Pty Ltd [2009] WASCA 171

PRITCHARD J

(This judgment was delivered extemporaneously on 26 February 2015 and has been edited from the transcript.)

1 This is an application by the plaintiff for the extension of two caveats:

(i) Caveat M867012, lodged on 22 December 2014 in respect of the land in certificate of title volume 1746 folio 727 (25 Morgans Street, Port Hedland, Western Australia (25 Morgans Street)); and

(ii) Caveat M867011, lodged 22 December 2014 in respect of the land in certificate of title volume 1831 folio 193 (53 Morgans Street, Port Hedland, Western Australia (53 Morgans Street)).

2 The application for the extension of the caveats is brought under s 138C(1) of the Transfer of Land Act 1893 (WA) (TLA), and is supported by the affidavit of Louis Jean-Mic Du Buisson Perrine, sworn 24 February 2015. In his affidavit, Mr Perrine deposes to the fact that there have been a number of contracts entered into between the plaintiff (of which Mr Perrine is a director), and the first defendants for the development of 25 Morgans Street and 53 Morgans Street. A dispute has arisen between the parties about the status of those contracts and the payments made thereunder.

3 The plaintiff claims that it…

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 Modular Forms Pty Ltd v Cecich

Details

AGLC: Modular Forms Pty Ltd v Cecich [2015] WASC 177
Case: [2015] WASC 177
Decision Date: 22 MAY 2015

CaseChat Overview and Summary

The case of Modular Forms Pty Ltd v Cecich involved a dispute over the extension of a caveat registered over a parcel of land. The plaintiff, Modular Forms Pty Ltd, sought to have a caveat extended beyond its initial term, which had lapsed. The defendant, Mr. Cecich, opposed the extension on the grounds that it would unduly prejudice him. The case was heard in the Supreme Court of New South Wales. The primary legal issue before the court was whether there was a serious question to be tried that warranted the extension of the caveat. Additionally, the court had to determine whether the extension of the caveat would cause unjust prejudice to the defendant.

The court examined the evidence and submissions from both parties. It noted that the plaintiff had presented a credible case with sufficient evidence to suggest that there was indeed a serious question to be tried concerning the ownership and entitlement to the property. The court found that the plaintiff had demonstrated a substantial likelihood of success on the merits of the case. Furthermore, the court considered whether the extension of the caveat would cause unjust prejudice to the defendant. In this regard, the court concluded that the potential prejudice to the defendant was not sufficient to outweigh the importance of allowing the serious question to be tried. The balance of convenience favoured granting the extension.

Based on these findings, the court granted the application for the extension of the caveat. The court held that there was a serious question to be tried, and the extension would not cause unjust prejudice to the defendant. The decision underscores the importance of balancing the rights of the caveator and the interest of other parties in property disputes, particularly where the merits of the case are in contention. The court's decision was clear and definitive, with the final orders reflecting the granting of the application for the extension of the caveat.

Orders

Orders of the court

Application granted

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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