Murfett Legal Pty Ltd v Frigger [No 2]

[2017] WASC 262

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   MURFETT LEGAL PTY LTD -v- FRIGGER [No 2] [2017] WASC 262

CORAM:   MASTER SANDERSON

HEARD:   22 AUGUST 2017

DELIVERED          :   5 SEPTEMBER 2017

FILE NO/S:   CIV 3007 of 2012

BETWEEN:   MURFETT LEGAL PTY LTD

Plaintiff

AND

ANGELA CECELIA THERESA FRIGGER
HARTMUT HUBERT JOSEF FRIGGER
First Defendants

REGISTRAR OF TITLES
Second Defendant

Catchwords:

Practice and procedure - First defendants' application for assessment of damages pursuant to an undertaking given when caveat extended - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Plaintiff:     Mr R J Lilley

First Defendants            :     In person

Second Defendant         :     No appearance

Solicitors:

Plaintiff:     Douglas Cheveralls Lawyers

First Defendants            :     In person

Second Defendant         :     No appearance

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

Murfett Legal Pty Ltd v Frigger [2015] WASC 406

1. MASTER SANDERSON:  This is another step in one of a suite of actions which might properly be called Mr and Mrs Frigger v The World.  The action began life when the plaintiff sought orders maintaining two caveats over properties owned by the first defendants.  (During the course of her submissions Mrs Frigger said there were initially three caveats.  The originating summons refers only to two caveats.  However, the second of the two caveats refers to two lots on two separate strata plans.  It may be the case that there were only two caveats but they seemed to have affected three separate lots.)

2. The matter initially came on before Le Miere J on 18 December 2012.  His Honour extended both caveats until 6 February 2013 and adjourned the hearing of the application to 5 February 2013.  On 5 February 2013 Justice Le Miere extended caveat L775693 until further order but made no order in respect of caveat L775694.  Accordingly it lapsed at midnight on 6 February 2013.  At the hearing Justice Le Miere proposed making no order with respect to one of the caveats and the plaintiff did not object to that course of action.  No reasons were published for this decision.

3. In November 2014 the first defendants filed an application to remove the plaintiff's caveat.  His Honour heard argument on 8 December 2014 and determined the caveat should stand:  see Murfett Legal Pty Ltd v Frigger [2015] WASC 406. In essence his Honour was satisfied that all three objections taken by the first defendants were met - there was a serious question to be tried, the balance of convenience favoured the caveat remaining on the title, and the caveat was adequately drafted. The claim which the plaintiff had against the first defendants related to fees for legal services. When the plaintiff and the first defendants had entered into a costs agreement the first defendants had agreed to provide security over their properties for payment of legal fees. Accounts had been rendered and remained unpaid. Indeed action had been taken by the plaintiff in the Magistrates Court and a default judgment had been obtained. That judgment was set aside upon payment into court of the amount of the debt. As a condition of the extension of the caveat the plaintiff was required to provide an undertaking as to damages and to proceed with the action in the Magistrates Court.

4. The plaintiff did proceed with its action in the Magistrates Court and was successful.  The first defendants have now paid that debt.  The caveat has been removed from the first defendants' properties.  But the first defendants maintain that they are entitled to seek damages relying on the undertaking provided by the plaintiff.

5. On 14 July 2017 the first defendants filed a chamber summons seeking the following relief:

   1.pursuant to s 140 Transfer of Land Act 1893 (WA) the plaintiff do pay the first defendants compensation for damages sustained by the lodgment of caveats against the first defendants' properties in November 2011 without reasonable cause;

   2.exemplary damages; and

   3.costs.

6. The plaintiff says the chamber summons is incompetent and ought be dismissed.  For reasons which follow they are clearly correct.

7. This action when it was heard and determined by Justice Le Miere only concerned one caveat. If the first defendants wished to seek damages in relation to caveat L775964 they must issue separate proceedings presumably in reliance upon s 140 of the Transfer of Land Act.  It is simply not open to rely upon that section in this action.

8. If these proceedings are an attempt to seek damages pursuant to the undertaking given by the plaintiff then that claim must fail.  The plaintiff succeeded in its action in the Magistrates Court.  That being so it must be the case it had a right to claim against the first defendants.  There is nothing in the evidence or the findings of Justice Le Miere which suggests that it was not open to the plaintiff to rely upon the first defendants contractual undertaking to provide security when lodging the caveat.  Before any claim for damages pursuant to the undertaking could be determined there would have to be a finding that the caveat was improperly lodged.  At the moment there is nothing to suggest that is the case.  If anything the evidence points to the plaintiff being entirely justified in lodging the caveat and maintaining it until they were paid their fees.

9. The first defendants' chamber summons will be dismissed.  The first defendants should pay the costs of the summons.  The plaintiff in its minute of proposed orders sought payment of costs of the action.  I did not hear Mrs Frigger on this issue.  I will allow the parties seven days to make submissions on this question and then decide the matter on the papers.