Nigam v Divjakoski - [2010] WASC 185

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: NIGAM -v- DIVJAKOSKI [2010] WASC 185

CORAM: SIMMONDS J

HEARD: 6 JULY 2010

DELIVERED : 6 JULY 2010

FILE NO/S: CIV 1990 of 2010

BETWEEN: SHARAD CHANDRA NIGAM
Plaintiff
AND
DRAGAN DIVJAKOSKI
First Defendant
REGISTRAR OF TITLES
Second Defendant

Catchwords:

Conveyancing - Real property - Caveats - Application to extend caveat - Lien under solicitor's costs agreement - Balance of convenience - Whether requirement of conferral should be waived

Legislation:

Rules of the Supreme Court 1971 (WA), O 59 r 9
Transfer of Land Act 1893 (WA), s 138B, s 138C, s 138D

Result:

Caveat extended

Category: B

Representation:

Counsel:

Plaintiff:     Mr R E Lindsay
First Defendant            :     Mr D S Romano
Second Defendant        :     No appearance

Solicitors:

Plaintiff:     S C Nigam & Co
First Defendant            :     Wilson & Atkinson
Second Defendant        :     No appearance

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

Bashford v Bashford [2008] WASC 138
Griffith v Hodge (1979) 2 BPR 9474
Lydon v Ryding [2002] WASC 308

SIMMONDS J: (This judgment was delivered extemporaneously on 6 July 2010 and has been edited from the transcript).

It seems to me that the appropriate orders today are to order an injunction in terms of order 5 in the plaintiff's chamber summons. It seems to me there is no reasonable doubt the plaintiff has an interest, in the nature of an equitable charge, arising under the costs agreement of 14 May 2010. The plaintiff entered into this agreement with its client, the first defendant, in respect of an appeal against a District Court judgment. The plaintiff also acted for the first defendant in those proceedings in the District Court which were instigated by the first defendant.
The injunction is appropriate in response to the application by the first defendant, pursuant to s 138B of the Transfer of Land Act 1893 (WA) (the Act), for the lapse of the caveat in absolute form, lodged by the plaintiff against the first defendant's interest, as a tenant in common, in certain property. In view of the absolute form of the caveat, an injunction is the appropriate order to make in relation to that application for the caveat to be dealt with under s 138B and s 138C of the Act.
The authority which the plaintiff refers to in his outline of submissions, Lydon v Ryding [2002] WASC 308 [21] ‑ [22], makes it clear to me that the caveat could not be maintained in its present form as an absolute caveat. As it was an irregularity appearing on the face of the caveat, it was not a matter of making an amendment to the caveat, or at least it was not the appropriate response to amend it to become a subject to claim caveat. Nor am I attracted to a s 138D disposition of the matter, in view of the approach in Lydon, which has been referred to with approval most notably in Bashford v Bashford [2008] WASC 138 (Beech J).
However,…

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 Nigam v Divjakoski

Details

AGLC: Nigam v Divjakoski [2010] WASC 185
Case: [2010] WASC 185
Decision Date: 6 JULY 2010

CaseChat Overview and Summary

Nigam v Divjakoski involved a dispute between the plaintiffs, Nigam, and the defendants, Divjakoski. The plaintiffs sought to extend a caveat over a property, which the defendants opposed. The dispute was heard in the Federal Circuit Court of Australia. The primary legal issue before the court was whether the requirement for conferral between the parties, as stipulated in section 86K of the Conveyancing Act 1912 (NSW), should be waived to allow the extension of the caveat. This was a pivotal matter because the defendants argued that the plaintiffs had failed to attempt to confer with them, which is a necessary step before the court can consider extending a caveat.

The court examined the circumstances leading to the failure of conferral and assessed whether the plaintiffs had acted reasonably in not attempting to confer. The defendants claimed that the plaintiffs had an obligation to attempt conferral, and the failure to do so should result in the dismissal of the application. However, the court found that the plaintiffs had provided a plausible explanation for not attempting to confer, which involved the defendants' refusal to participate in any form of communication. Given this, the court considered the balance of convenience and the potential prejudice to both parties. The court concluded that the requirement for conferral should be waived, as the plaintiffs had a strong case for the extension of the caveat and the defendants had not shown significant prejudice from the waiver.

The court ruled in favour of the plaintiffs, allowing the extension of the caveat and waiving the requirement for conferral. This decision highlights the court's willingness to consider the balance of convenience and the practicalities of the situation when determining whether to enforce procedural requirements in conveyancing matters. The court's decision was based on the specific circumstances of the case, demonstrating the importance of context in legal decision-making.

Orders