Modular Forms Pty Ltd v Cecich
[2015] WASC 177
•22 MAY 2015
MODULAR FORMS PTY LTD -v- CECICH [2015] WASC 177
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 177 | |
| 22/05/2015 | |||
| Case No: | CIV:1264/2015 | 26 FEBRUARY 2015 | |
| Coram: | PRITCHARD J | 26/02/15 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application granted | ||
| B | |||
| PDF Version |
| 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
- 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 has an equitable interest in the land the subject of the caveats sufficient to warrant the continuation of the caveats. That interest is said to arise from cl 17 of a contract dated 14 May 2012 in respect of 53 Morgans Street, and a similar clause in respect of the contract in relation to 25 Morgans Street (collectively, the contracts).
4 The terms of those clauses, in short, suggest that the first defendants agreed to charge the land at 25 and 53 Morgans Street with an obligation to pay the plaintiff monies that were, or would become, payable under each contract. This was only to occur if the plaintiff delivered materials described as 'prefabricated sections' and 'associated Proposed Development' to the land.Each clause also provided for the defendants' irrevocable authorisation and consent to the plaintiff lodging an absolute caveat over the land, which has since occurred.
5 Counsel for the first defendants indicated that he did not have instructions to consent to the extension of the caveat. Instead, he made some preliminary submissions in relation to whether there remain contracts on foot and whether moneys are still owed by the first defendants to the plaintiff under those contracts. Ultimately, it is the first defendants' position that no money remains to be paid under the contracts and that, therefore, there is no basis for the continuation of the caveats. These submissions adverted to arguments that the first defendants wish to put before the Court in relation to whether the caveats should be extended in the longer term. They did not go to the question of whether any extension of the caveats should be granted in the interim. In particular, counsel for the first defendants did not suggest that there was any compelling balance of convenience issue which would call into question the continuation of the caveats, at least on a temporary basis.
6 The legal principles in relation to an order extending a caveat under s 138C of the TLA are well established. They were set out by Beech J in Bashford v Bashford.1 It is not necessary to repeat his Honour's observations here. His Honour's observations must, however, be read in conjunction with some more recent authorities to which I make reference below.
7 In summary, the Court's power to make an order under s 138C(2) of the TLA arises only if the Court is satisfied that the claim by the caveator (that is the interest in land that is claimed in the caveat) has or may have substance, and on that question the caveator bears the onus of demonstrating that there is a serious question to be tried as to whether the interest claimed in the caveat exists. In determining whether to exercise its discretion under s 138C, the Court will also consider where the balance of convenience lies.
8 The existence of a serious question to be tried involves showing a sufficient likelihood of success to justify the preservation of the status quo in all of the circumstances. How strong the likelihood of success needs to be depends upon the nature of the rights asserted and the practical consequences likely to flow from the order sought.2 Consequently, whether there is a serious question to be tried, and the consideration of those factors going to the balance of convenience, are not wholly independent inquiries.
9 Having regard to these principles, I am satisfied on the affidavit material before the Court that the interests claimed in the caveats have, or may have, substance. Accordingly, there is a serious question to be tried as to whether the interests claimed in the caveats exist. Furthermore, there is no balance of convenience consideration which would suggest that the caveats should not be extended on a temporary basis, pending a further hearing.
10 Taking all of those matters into account, the appropriate course is to order that the caveats be extended on an interim basis, pending either a further hearing in respect of a longer term extension of the caveats until the dispute is resolved between the parties, or alternatively, pending some discussions between the parties as to the appropriate way forward to resolve this dispute. As I suggested during the course of the hearing, counsel should consider whether a more expeditious course for the resolution of this dispute might be for one, or both, of the parties to commence an action, and for that action to be pursued as expeditiously as possible to final resolution in order to determine whether any moneys are owing under the contracts.
11 In those circumstances, I propose to make the following orders:
(1) Caveat M867012 lodged 22 December 2014 over Lot 212 on diagram 69910, being the land in certificate of title volume 1746 folio 727, being commonly referred to as 25 Morgans Street, Western Australia, be extended on an interim basis until further order.
(2) Caveat M867011 lodged 22 December 2014 over Lot 198 on deposited plan 223066 in certificate of title 1831 folio 193, being commonly referred to as 53 Morgans Street, Western Australia, be extended on an interim basis until further order.
1Bashford v Bashford [2008] WASC 138 [42] - [56].
2Perron Investments Pty Ltd v Tim Davies Landscaping Pty Ltd [2009] WASCA 171 [42] - [44] (Newnes JA) referring to Australian Broadcasting Corp v O'Neill [2006] HCA 46; (2006) 227 CLR 57, 82).
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