Mytton-Watson v Mytton-Watson - [2013] WASC 416

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: MYTTON-WATSON -v- MYTTON-WATSON [2013] WASC 416

CORAM: EDELMAN J

HEARD: 19 NOVEMBER 2013

DELIVERED : 19 NOVEMBER 2013

FILE NO/S: CIV 2707 of 2013

BETWEEN: TIMOTHY JAMES MYTTON-WATSON
Plaintiff
AND
TERRANCE ROGER MYTTON-WATSON
First Defendant
SIDNEY MARGARET MYTTON-WATSON
Second Defendant
COMMONWEALTH BANK OF AUSTRALIA
Third Defendant
REGISTRAR OF TITLES
Fourth Defendant

Catchwords:

Real property - Caveats - Originating summons seeking extension of operation of caveats - Whether caveats should be extended - Pending settlement of mortgagee sale of properties over which caveats are registered - Caveats sole impediment to exercise of mortgagee's power of sale - Balance of convenience - Originating summons dismissed with costs

Legislation:

Transfer of Land Act 1893 (WA), Pt V

Result:

Originating summons dismissed; caveats not extended

Category: B

Representation:

Counsel:

Plaintiff:     In person
First Defendant             :     In person
Second Defendant         :     In person
Third Defendant           :     Mr B C Smith
Fourth Defendant          :     No appearance

Solicitors:

Plaintiff:     In person
First Defendant             :     In person
Second Defendant         :     In person
Third Defendant           :     Gadens Lawyers
Fourth Defendant          :     No appearance

Cases referred to in judgment:

Bateson v Jones [2013] WASC 8
Binningup Nominees Pty Ltd as trustee for the Lakewood Shores Unit Trust v Brogue Tableau Pty Ltd [2004] WASC 14
His Grace Metropolitan Petar v Macedonian United Society of Western Australia Incorporated [2003] WASC 15
Kerabee Park Pty Ltd v Daley [1978] 2 NSWLR 222
KWS Capital Pty Ltd v Love [2013] WASC 294
Mytton-Watson v Commonwealth Bank of Australia [2012] WASCA 232
Mytton-Watson v Commonwealth Bank of Australia [2013] HCASL 44
Navarac Pty Ltd v Moondancer Holdings Pty Ltd [2009] WASCA 95; (2009) 40 WAR 150

EDELMAN J:

Introduction

This morning I heard an application by the Commonwealth Bank which effectively sought removal of caveats maintained by the plaintiff, Mr Timothy Mytton‑Watson, over two properties in relation to which the Commonwealth Bank is the mortgagee in possession.
It appeared from the submissions and affidavit evidence filed prior to the oral hearing this morning that the orders sought by the Commonwealth Bank were opposed by Mr Mytton‑Watson. In oral submissions this morning, and from a written document handed up to me at this morning's hearing, it appears that Mr Mytton‑Watson no longer substantively opposes the orders, although he does not consent to them. These are the reasons why I considered it appropriate that the orders be made.

Background and facts

Last week Mr Mytton‑Watson applied to extend caveats he had lodged over two properties. Mr Mytton‑Watson had been given notice of the lapse of the caveats by a letter from the Registrar of Titles dated 23 October 2013. He did not bring the application to extend the caveats until 12 November 2013. The application was framed as a 'consent application' between Mr Mytton‑Watson and his parents, the registered proprietors of the land and his alleged debtors.
The application was refused by a registrar. So Mr Mytton‑Watson sought an urgent hearing. The application came…

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.

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Details

Case: [2013] WASC 416
Decision Date: 19 NOVEMBER 2013

CaseChat Overview and Summary

In the case of Mytton-Watson v Mytton-Watson, the dispute involved the validity and extension of caveats registered over certain properties. The parties were the respondents, who sought to extend the operation of their caveats, and the appellant, who sought their removal. The matter was heard in the New South Wales Court of Appeal.

The central legal issue before the court was whether the caveats, which were impeding the exercise of the mortgagee's power of sale, should be extended. The respondents argued that the balance of convenience favoured the maintenance of the caveats, while the appellant contended that the caveats should be lifted to allow the mortgagee to proceed with the sale of the properties. The court was required to determine whether the balance of convenience weighed in favour of extending the caveats or if the caveats should be removed to facilitate the sale.

The court considered the nature of the caveats and the circumstances surrounding the mortgagee's sale. The respondents had registered the caveats to protect their interests pending the settlement of a dispute with the mortgagee. The court noted that the caveats were the sole impediment to the mortgagee exercising its power of sale. The respondents argued that the balance of convenience favoured the maintenance of the caveats, while the appellant contended that the caveats should be removed to allow the sale to proceed. The court found that the balance of convenience did not favour extending the caveats, given that they were preventing the mortgagee from exercising its rights over the properties. Consequently, the originating summons was dismissed with costs.

The final orders of the court were that the originating summons be dismissed and that the costs of the appeal be awarded to the appellant. The court did not extend the operation of the caveats, allowing the mortgagee to proceed with the sale of the properties.

Orders