Nutrien AG Solution Ltd v Collier
[2021] WASC 147
•10 MAY 2021
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: NUTRIEN AG SOLUTION LTD -v- COLLIER [2021] WASC 147
CORAM: ALLANSON J
HEARD: 6 MAY 2021
DELIVERED : 7 MAY 2021
PUBLISHED : 10 MAY 2021
FILE NO/S: CIV 1316 of 2021
BETWEEN: NUTRIEN AG SOLUTION LTD
Plaintiff
AND
PAUL ANTHONY COLLIER
First Defendant
REGISTRAR OF TITLES OF WESTERN AUSTRALIA
Second Defendant
Catchwords:
Real property - Application for leave to lodge caveat where earlier caveat permitted to lapse by agreement following Registrar's notice - Discretionary factors - Turns on own facts
Legislation:
Transfer of Land Act 1893 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr C Breheny |
| First Defendant | : | Mr P Lithgow |
| Second Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | SLF Lawyers |
| First Defendant | : | Force Legal |
| Second Defendant | : | No appearance |
Case(s) referred to in decision(s):
Bashford v Bashford [2008] WASC 138
Difranco v Rattlebay Pty Ltd [2010] WASC 103
Wilkin v Scardina [2003] WASC 144
Zorostar Pty Ltd v Arian Investments Pty Ltd [2019] WASC 415
ALLANSON J:
Introduction
(These reasons were delivered orally on 7 May 2021.)
The plaintiff applies for an order that it have leave to lodge for registration a caveat as to its interest in a property of the first defendant.
The first defendant, Paul Anthony Collier, and Kerry-Lee Collier, are registered proprietors as joint tenants of a property in Watermans Bay.
On 14 December 2020, the plaintiff attempted to lodge a caveat for registration over the property to secure a charge granted by Mr Collier pursuant to a guarantee. The caveat was not accepted.
The plaintiff had previously lodged a caveat over the same property. The caveat lapsed in 2020, following the issue of a Registrar's notice pursuant to s 138B of the Transfer of Land Act 1893 (WA). Under s 138D of the Act, the plaintiff cannot lodge a further caveat in respect of the same land without the consent of the proprietor, or leave of the court.
The plaintiff attempted to obtain the consent of Mr Collier, without success, and now seeks leave of the court.
Principles
The principles relevant to an application for leave under s 138D were summarised by Beech J in Difranco v Rattlebay Pty Ltd[2010] WASC 103 [21] ‑ [23]:
The power to grant leave to lodge a second caveat is a broad discretionary one to be exercised by reference to all the circumstances: Oversea-Chinese Banking Corporation Ltd v Becker [2003] QSC 301 [17].
The principles relevant to an application for leave to lodge a second caveat overlap substantially with the principles relevant to whether a caveat should be extended or removed.
An applicant under this section must also provide a satisfactory explanation as to why the earlier caveat lapsed and for any delay in making the application for leave: Yardley v Favell Gordon (Aust) Pty Ltd [2005] WASC 212 [43].[1]
[1] See also Wilkin v Scardina [2003] WASC 144 [15]; and see Zorostar Pty Ltd v Arian Investments Pty Ltd [2019] WASC 415.
The evidence
The plaintiff relies on the affidavits of John Edward Mapleston, solicitor, affirmed 21 April 2021 and 6 May 2021, and the affidavit of Lydia Kent, sworn 13 April 2021.
Mr Mapleston makes his affidavit on the basis of his review of the files of SLF Lawyers, the solicitors for the plaintiff. In his first affidavit, Mr Mapleston deposes:
(1)On or about 25 May 2016, the plaintiff (under its former name, Landmark Operations Limited) entered into a written agreement with Australian Inspection Service Pty Ltd to supply goods on credit on certain terms and conditions.
(2)Mr Collier, provided a guarantee and indemnity to secure payment of amounts due and owing under the Agreement. The guarantee included a clause charging Mr Collier's property as security for 'all moneys owed by the Customer to the Company'. Australian Inspection Service was named as the 'Customer' in the application for credit.
(3)On or about 20 April 2018, the plaintiff initiated legal proceedings to recover on unpaid invoices issued between 20 June 2017 and 8 February 2018, relating to goods it supplied.
(4)On 22 June 2018, the plaintiff obtained default judgment in the County Court of Victoria (amended as to the amount on 10 September 2019) against Australian Inspection Service.
(5)On or about 28 November 2018, Australian Inspection Service was wound up in insolvency by order of the Supreme Court of Victoria.
(6)On 24 April 2019, the plaintiff lodged a caveat on the property of Mr Collier to secure its interests in the property pursuant to the guarantee.
(7)On or about 25 March 2019, the plaintiff caused a bankruptcy notice to be served on Mr Collier. The bankruptcy notice sought payment of the default judgment.
(8)In September 2019, the plaintiff filed a creditor's petition in the Federal Circuit Court on Mr Collier's failure to comply with the bankruptcy notice.
(9)In or about November 2019, the plaintiff, Mr Collier, and Australian Inspection Services reached a settlement agreement in relation to the creditor's petition, the terms of which included that the plaintiff would allow the caveat to lapse.
(10)On or about 25 March 2020, Mr Collier caused the Registrar of Titles to issue a notice under s 138B of the Transfer of Land Act, and the caveat lapsed on 17 April 2020. The plaintiff allowed the caveat to lapse on the basis of the settlement agreement.
Mr Mapleston attached a copy of the agreement of 25 May 2016 between the plaintiff and Australian Inspection Service, including the guarantee given by Mr Collier. Relevantly, the guarantee includes a clause by which Mr Collier charged in favour of the plaintiff all his estate and interest in any land in which he then had or later acquired any legal or beneficial interest, and consented to the plaintiff lodging a caveat over any such property.
The plaintiff also led evidence that between 26 September 2017 and 11 September 2018, it supplied further goods to Australian Inspection Service. On 7 January 2020, the plaintiff issued invoices in the amount of $211,052.84 to Accredited Veterinary Services Pty Ltd. The plaintiff said the invoices were issued to that body because, at the time, Australian Inspection Service was in liquidation. The plaintiff says that Mr Collier requested the plaintiff to issue the invoices to Accredited Veterinary Services.
On or about 28 October 2020, the plaintiff issued amended proceedings in the County Court of Victoria seeking payment by Mr Collier of the amount of the invoices issued on 7 January 2020.
In the affidavit of Ms Kent, she states that the goods supplied between 26 September 2017 and 11 September 2018 were supplied to Mr Collier, who received them on behalf of Australian Inspection Service.
Ms Kent states that the invoices were issued to Accredited Veterinary Services Pty Ltd because at the time Australian Inspection Service was in liquidation and, on 27 June 2019, Mr Collier requested that the plaintiff issue the invoices to Accredited Veterinary Services.
The plaintiff has adduced evidence that Mr Collier, through his solicitors, advised the plaintiff that he disputes liability as a guarantor on invoices issued to Accredited Veterinary Services and further disputes the validity of the guarantee and any monies owing pursuant to it.
In a second affidavit, affirmed 6 May 2021, Mr Mapleston deposes to his belief that Mr Collier's property is for sale, and provides evidence upon which he has formed that belief.
The documents
The plaintiff attached relevant documents to the affidavits of Mr Mapleston and Ms Kent. Those documents disclose matters which must qualify some of the statements made in the affidavits. I will refer only to some of them.
First, Mr Mapleston referred only to default judgment against Australian Inspection Service in the County Court of Victoria. The attached judgment was against both Australian Inspection Service and Accredited Veterinary Services. The plaintiff did not refer to any history of supply of goods to Accredited Veterinary Services.
Second, the amended statement of claim in the current County Court action shows the parties to the action are the plaintiff, and Mr Collier and Accredited Veterinary Services (as defendants).
In summary, the plaintiff pleads in that action that:
(1)between around September 2017 and September 2018 it entered into an agreement with Mr Collier and Accredited Veterinary Services, alternatively Australian Inspection Service;
(2)goods were delivered to Mr Collier and Accredited Veterinary Services, alternatively to Australian Inspection Service; and
(3)it was a term of the agreement that Mr Collier and Accredited Veterinary Services, alternatively Australian Inspection Service, were required to pay all amounts for purchases made under the agreement.
The plaintiff pleads the failure by Mr Collier and Accredited Veterinary Services, alternatively Australian Inspection Service, to pay invoiced amounts.
There is an alternative plea in unjust enrichment.
Is there a caveatable interest
In essence, the question is whether the plaintiff has an arguable security interest in the property at Watermans Bay and if so, whether the balance of convenience supports the continued operation of the caveat: Bashford v Bashford [2008] WASC 138 [42] ‑ [57] and [92]. The interest relied on is as a chargee under the guarantee.
The terms of the guarantee would permit the lodging of a caveat in that Mr Collier granted a charge over his property.
There is presently no evidence before the court to counter the plaintiff's claim of apparent prejudice should the property be sold and it lose the security that Mr Collier gave it under the guarantee.
The critical question is whether the liability upon which the plaintiff bases its case is a liability incurred by Australian Inspection Service, to which the guarantee applies, or a liability incurred by Accredited Veterinary Services, or perhaps a personal liability of Mr Collier which is not secured. In stating the question in that way, I have not overlooked that Mr Collier disputes that he or Accredited Veterinary Services are liable to the plaintiff.
On an application which is, essentially, for interlocutory relief it is not appropriate for the court to attempt to resolve disputed issues of fact. But I must express my reservations about the claim based on the guarantee Mr Collier gave for the obligations of Australian Inspection Service, including the explanation for why invoices of 7 January 2020 were made out to Accredited Veterinary Services, in light of the case that the plaintiff has pleaded in the County Court of Victoria.
Discretionary factors
In my opinion, the application fails for other reasons.
The power to grant leave to lodge a further caveat is discretionary, with the discretion to be exercised by reference to all of the circumstances.
First, the terms of the guarantee are confined to the obligations of Australian Inspection Service. The plaintiff relies on invoices that it issued to Accredited Veterinary Services, ostensibly for the supply of goods to that company. It has not put forward a case that Mr Collier has given security for liabilities incurred by Accredited Veterinary Services.
Second, the original caveat was permitted to lapse following the plaintiff, Mr Collier, and Australian Inspection Services reaching a settlement agreement in November 2019, in relation to the plaintiff's creditor's petition. On the order of events, the plaintiff caused a bankruptcy notice to be served on Mr Collier in March 2019. The request from Mr Collier for the issue of the invoices to Accredited Veterinary Services, was on 27 June 2019. The settlement agreement by the plaintiff with Mr Collier and Australian Inspection Services was in November 2019. All parties must have been aware of the amounts now said to be outstanding, even if invoices had not then been issued. The plaintiff permitted the caveat to lapse after the invoices had been issued.
Third, the plaintiff has not chosen to put before the court any other evidence of the terms of the settlement agreement. It is a significant omission when the current claim relates to invoices issued, and liabilities incurred, for goods delivered before the agreement was made.
Fourth, the plaintiff does not suggest that it permitted the caveat to lapse because it was misled by anything said or done by Mr Collier, or Australian Inspection Service. Nor does it allege any breach of the settlement agreement.
Fifth, I have had regard to the discrepancies between the plaintiff's case in this application and the case it has chosen to plead in the County Court of Victoria.
Finally, I am concerned about the sole explanation advanced by the plaintiff for the issue to Accredited Veterinary Services of the invoices on which it bases its current application. That is, the plaintiff says the invoices were issued in that way because the true debtor was then in liquidation.
Taking those matters into account, even if the plaintiff might demonstrate a caveatable interest in the property, I would not exercise my discretion in its favour.
The application will be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MG
Associate to the Honourable Justice Allanson
10 MAY 2021
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