Nutrien AG Solution Ltd v Collier - [2021] WASC 147

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

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 Nutrien AG Solution Ltd v Collier

Details

AGLC: Nutrien AG Solution Ltd v Collier [2021] WASC 147
Case: [2021] WASC 147
Decision Date: 10 MAY 2021

CaseChat Overview and Summary

In the Federal Court of Australia, Nutrien AG Solution Limited (the Applicant) sought leave to lodge a caveat over certain property, which was previously subject to a caveat that had lapsed. The Respondent, Collier, had been the proprietor of the earlier caveat but had permitted it to lapse following a notice from the Registrar of Titles. The Applicant argued that it had a legitimate interest in the property due to an agreement with a third party, and sought leave to lodge a new caveat. The case focused on whether the court should exercise its discretion to permit the Applicant to lodge a new caveat, despite the earlier caveat having lapsed.
The legal issues before the court were whether the Applicant had a legitimate interest in the property and whether the court should exercise its discretion to permit the Applicant to lodge a new caveat, considering the factors relevant to such a decision. The court considered the nature and strength of the Applicant's interest in the property, the circumstances of the lapse of the earlier caveat, and any other relevant factors in determining whether to grant leave to lodge the new caveat.
The court held that the Applicant had a legitimate interest in the property, as it was party to an agreement with a third party that provided it with a security interest in the property. However, the court also noted that the circumstances of the lapse of the earlier caveat were relevant to the exercise of discretion. The court found that the Applicant had not demonstrated any exceptional circumstances that would warrant the exercise of the court's discretion to permit the lodging of a new caveat. The court emphasised that the decision turned on the facts of the case, and that each case would be considered on its own merits.
The court ultimately declined to exercise its discretion to permit the Applicant to lodge a new caveat over the property. The court did not make any orders regarding the lodging of a caveat, as it found that the Applicant had not satisfied the criteria for the exercise of the court's discretion.

Orders