Naidoo v R M Naidoo Pty Ltd
[2000] WASC 100
•18 APRIL 2000
NAIDOO -v- R M NAIDOO PTY LTD & ANOR [2000] WASC 100
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASC 100 | |
| 18/04/2000 | |||
| Case No: | CIV:2362/1999 | 7 APRIL 2000 | |
| Coram: | SCOTT J | 7/04/00 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | DHANALUTCHEMEE NAIDOO R M NAIDOO PTY LTD REGISTRAR OF TITLES |
Catchwords: | Caveat Application to remove caveat Dispute pending between the parties Plaintiff alleged to have filed inconsistent statutory declarations in support of caveat Plaintiff must establish that there is a serious question to be tried Matter should be brought to trial as soon as possible |
Legislation: | Transfer of Land Act 1893, s 138C |
Case References: | Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42 Eng Mee Yong v Letchumanan [1980] AC 331 Porter v MacDonald (1984) WAR 271 Re Clement's Caveat [1981] Qd R 341 Re Jorss' Caveat [1982] Qd R 458 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
R M NAIDOO PTY LTD
First Defendant
REGISTRAR OF TITLES
Second Defendant
Catchwords:
Caveat - Application to remove caveat - Dispute pending between the parties - Plaintiff alleged to have filed inconsistent statutory declarations in support of caveat - Plaintiff must establish that there is a serious question to be tried - Matter should be brought to trial as soon as possible
Legislation:
Transfer of Land Act 1893, s 138C
(Page 2)
Result:
Application dismissed
Representation:
Counsel:
Plaintiff : Mr K C Staffa
First Defendant : Mr D A Lenhoff
Second Defendant : No appearance
Solicitors:
Plaintiff : Preuss Feinauer & Associates
First Defendant : Paiker & Overmeire
Second Defendant : No appearance
Case(s) referred to in judgment(s):
Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42
Eng Mee Yong v Letchumanan [1980] AC 331
Case(s) also cited:
Porter v MacDonald (1984) WAR 271
Re Clement's Caveat [1981] Qd R 341
Re Jorss' Caveat [1982] Qd R 458
(Page 3)
1 SCOTT J: On 7 April 2000 I dismissed an application by the first defendant to discharge caveats Nos H244705C and H244706C registered over land in the name of the first defendant. I indicated I would later provide reasons for that decision. These are those reasons.
2 On 13 December 1999, Wheeler J made ex parte orders extending the operation of the above caveats until judgment in the action and granted liberty to apply. Pursuant to that liberty to apply the first defendant seeks to have the court order the discharge of a second caveat, namely, caveat No H244706C which purports to prevent the first defendant from dealing with units 2F and 2C of a strata unit development in Brisbane Street, Perth, in which it is said the plaintiff invested.
3 It is common ground that the plaintiff did place funds with the first defendant for investment. A dispute has arisen between the parties as to whether the plaintiff's investment was in relation to all of the units being developed or whether it only related to a single unit, unit 2E. As I understand the plaintiff's case, she claims that for her investment she was granted a 10 per cent interest in profit from the development of all the units. The first defendant maintains that the money the plaintiff invested was a deposit on one unit, namely, unit 2E and did not extend to any other unit or units in the strata title development.
4 In the main action, the plaintiff is seeking an account for her share of the proceeds, being, so she claims, 10 per cent equity in the whole development.
5 The application by the first defendant is to discharge the plaintiff's caveat over units 2F and 2C, which would leave the plaintiff with a caveat over 2E.
6 As I have said, Wheeler J ordered that both caveats be extended until further order of the court with liberty to apply. Pursuant to that liberty to apply, the first defendant has brought an application to discharge the caveats presently subsisting over units 2F and 2C in the development. There is no argument that the caveat over unit 2E should remain.
7 In support of the first defendant's contention that the caveats over units 2F and 2C should be removed, counsel for the first defendant argues that the plaintiff has filed inconsistent statutory declarations supporting the two different caveats. In the first of those statutory declarations, the plaintiff deposes:
(Page 4)
- "On or about December 1995 it was further agreed that all the plaintiff's interests in the development be transferred to an interest as legal and beneficial owner in one of the units in the development being unit 2E."
8 It is said that in relation to the statutory declaration supporting the caveat over the other two units the subject of the present application, the plaintiff deposed in the supporting statutory declaration:
"The plaintiff seeks registration of the second caveat in order to ensure that her interest in the development is not disposed of without an accounting to her of her 10 per cent equity holding in the development and that R M Naidoo Pty Ltd does not dispose of its interest."
9 Counsel for the first defendant therefore argues that as the plaintiff has filed two inconsistent statutory declarations, that the second of those two declarations should be regarded as unreliable, leaving the plaintiff with the caveat over Unit 2E to protect her interests.
10 In order to sustain a caveat, the plaintiff must establish that she has a caveatable interest in the land and that there is a serious question to be tried on the issue: Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42 per Owen J at 48.
11 The onus that rests upon the plaintiff to establish her right to a caveatable interest and the nature of that obligation was discussed by Lord Diplock in Eng Mee Yong v Letchumanan [1980] AC 331 at 337:
"This is the nature of the onus that lies upon the caveator in an application by the caveatee under section 327 for removal of a caveat: he must first satisfy the court that on the evidence presented to it his claim to an interest in the property does raise a serious question to be tried; and, having done so, he must go on to show that on the balance of convenience it would be better to maintain the status quo until the trial of the action, by preventing the caveatee from disposing of his land to some third party."
12 In my opinion, in this case, there clearly is a serious issue to be tried. The plaintiff's position is that her investment entitled her, at least initially, to a 10 per cent interest in the development of all of the units. The first defendant's position is that the plaintiff's investment was only in relation
(Page 5)
- to a single unit, namely, unit 2E and not in relation to the whole development.
13 It is not necessary in the course of these proceedings to determine whether there is an inconsistency in the plaintiff's two statutory declarations and if there is, which statutory declaration sets out the correct position. Those issues will be ventilated at trial.
14 As the argument was advanced by counsel for the first defendant, it was submitted that because the plaintiff has filed two inconsistent statutory declarations in support of caveats filed with the second defendant, her claim to a caveatable interest in relation to units 2F and 2C should not be sustained.
15 The plaintiff's position, on the other hand, is that the two statutory declarations are not inconsistent. Counsel for the first defendant maintains that the correct position is that the development was to take place in two stages and that upon completion of the second stage of the development, the plaintiff's entitlement would ultimately be vested in unit 2E.
16 Exactly what the plaintiff's interest is in the development, and whether it is an interest only in one unit or in the whole development is an issue that will need to be determined at trial. The papers before me indicate that there will be conflicting evidence on that issue.
17 It is common ground that unit 2E has never been transferred to the plaintiff and that it is subject to a mortgage granted by the first defendant in favour of a lending institution. It is possible, so counsel for the plaintiff contends, that the plaintiff will never obtain clear title to unit 2E.
18 The affidavits before me indicate that there is no dispute that the plaintiff has paid at least $90,000 to the first defendant in relation to the development and, as these reasons indicate, the dispute arises as to exactly what the plaintiff was entitled to, in exchange for that contribution.
19 As I understand counsel for the plaintiff, the plaintiff's position at trial will be that the agreement, insofar as it related to unit 2E, cannot and will not come to settlement because the first defendant failed to carry out its part of the agreement.
20 In the end result, in my view, the conflicts in the evidence are such that inevitably, they will not be resolved until the action comes to trial. The status quo at the moment is that the plaintiff has registered caveats
(Page 6)
- over three units in order to protect her interests, and in my view that position should remain until trial. As I indicated to the parties in the course of hearing this application, it is in everybody's interest for the action to be brought to trial as soon as possible.
21 In my opinion, the plaintiff has established a sufficient caveatable interest in each of the units concerned for the caveats to remain in place until the action is heard.
22 For these reasons on 7 April 2000 I dismissed the first defendant's application and made ancillary orders.
0
1
1