O'Dea v Albans Farm Pty Ltd - [2008] WASC 171

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: O'DEA -v- ALBANS FARM PTY LTD [2008] WASC 171

CORAM: MASTER SANDERSON

HEARD: 24 JULY 2008

DELIVERED : 24 JULY 2008

PUBLISHED : 18 AUGUST 2008

FILE NO/S: CIV 1229 of 2007

BETWEEN: MICHAEL GEOFFREY O'DEA
JULIEN FENG
Plaintiffs
AND
ALBANS FARM PTY LTD (ACN 104 900 549)
First Defendant
REGISTRAR OF TITLES
Second Defendant

Catchwords:

Property law - Application to discharge caveats lodged over first defendant's land - Turns on own facts

Legislation:

Nil

Result:

Caveats discharged

Category: B

Representation:

Counsel:

Plaintiffs:     Mr A R MacKinlay
First Defendant              :     Mr L E James
Second Defendant         :     No appearance

Solicitors:

Plaintiffs:     MacKinlays
First Defendant              :     Kott Gunning
Second Defendant         :     No appearance

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

Nil

MASTER SANDERSON: The first defendant is the registered proprietor of lots 701, 702 and 703 St Albans Road, Baldivis. On 12 December 2006, I granted leave to the plaintiffs to lodge caveats against these three lots. The caveats were duly lodged. Under the provisions of s 138B of the Transfer of Land 1893 (WA), the first defendant caused the second defendant to issue notices with respect to the caveats to the effect that if the plaintiffs did not take action, the caveats would lapse on 13 March 2007. The plaintiffs did take action. On 12 March 2007, I ordered that the operation of the caveats be extended until further order. The application was made ex parte. I further ordered that a copy of the originating summons and supporting affidavit be filed on both the first and second defendants. I gave liberty to apply.
By a chamber summons filed 5 May 2008, the first defendant sought the following orders:
1.The order of Master Sanderson dated 12 day of March 2007 be set aside.
2.Caveats Nos. K24254, K24255 and K24256 do cease to have effect.
3.A copy of this order be served on the Registrar of Titles at 1 Midland Square, Morrison Road, Midland in the State of Western Australia.
4.The first defendant do pay two‑thirds of the net proceeds of sale of the land comprised in certificates of title volume 1928 folio 708, volume 1928 folio 709 and volume 1928 folio 710 into an interest‑bearing trust account in the name of the first defendant's solicitors, Kott Gunning, such sum to abide the outcome of Supreme Court Action CIV 2497 of 2005 and not to be paid out except with the consent of the plaintiffs or by further order of this Honourable Court.
5.The costs of this application be reserved.
(This is an amended form of the orders sought in the original summons. The amendment which was made with leave at the hearing is of no consequence in the overall disposition of the application.)
This matter has an unfortunate procedural history. As I have indicated, the application was originally filed on 5 May 2008. It came on for mention on 13 May 2008 and programming orders were made by consent. Those orders required that the plaintiffs file any affidavit by 27 May 2008. The first defendant was given until 16 June to respond. The first defendant was to file and serve its submissions not less than seven days prior to the hearing and the plaintiffs were to file and serve their submissions no later than three days before the hearing. Subsequent to the making of these orders, the matter was set down for a hearing on 1 July 2008.
The plaintiffs did not comply with the programming orders. No further affidavit on their behalf was filed, nor were any submissions lodged. When the matter was called on for hearing, the first‑named plaintiff, Mr O'Dea, appeared in person. He sought an adjournment of the application. He provided an explanation as to why he was not represented and as to why he wanted an adjournment. This explanation has not been verified on oath. Nonetheless, I will repeat what I was told in bare outline to better explain why I ultimately disposed of the application as I did.
As at 1 July, the plaintiffs were represented by solicitors who were on the record. It was that firm that agreed with the first defendant's solicitors the programming orders to which I have referred. Mr O'Dea said that he had not been aware of the programming orders that were made and became aware that the matter was listed for hearing only a few days before the hearing. He said he had the greatest difficulty contacting his solicitors. When he eventually did make contact, he was advised by those solicitors that they were not prepared to act for him at the hearing. By that stage he said it was too late for him to instruct other solicitors and he now sought an adjournment. He indicated that he was not in a position to argue the matter personally, that he wished to put further evidence before the court and that with an adjournment, he was sure the application could be successfully opposed.
Counsel for the first defendant objected to any adjournment being granted. He pointed out that the matter had followed the proper procedural course. There had been some six weeks between the first mention and the date of the hearing. He submitted that it was entirely inappropriate that the difficulties of the plaintiffs should be visited on the first defendant.
After hearing argument I granted the adjournment. I was satisfied that it was in the interests of justice to do so. At the time of granting that adjournment, I made two points to Mr O'Dea. First, I pointed out to him that on the papers - that is, the two affidavits filed by the first defendant in support of the application - the first defendant appeared to have strong prospects of success. Second, I indicated that the adjournment was an indulgence and no further adjournment could be expected. I urged Mr O'Dea to take advice at the earliest possible opportunity. It was clear from Mr O'Dea's comments at the hearing that he understood the gravity of the situation.
Further programming orders were made. I adjourned the matter to 24 July at a time convenient to Mr O'Dea. I also ordered that the plaintiffs file and serve any further affidavit and submissions by 15 July. In other words, I gave the plaintiffs an indulgence of 14 days to properly formulate their case. Mr O'Dea indicated that he was satisfied with that timeframe.
The matter duly came on for hearing on 24 July 2008. The plaintiffs were represented by new solicitors who, as at the date of hearing, had not had the opportunity to lodge a notice of change of solicitors. Counsel for the plaintiffs applied for an adjournment. He advised that he had been instructed only the day before and he was not as yet in possession of the plaintiffs' file. While he was able to indicate that his preliminary assessment of the matter indicated there may be grounds for defending the claim, he could not with the instructions he had at that time properly represent his clients' interests. Counsel submitted that it was in the interests of justice that the adjournment be granted.
Not surprisingly, counsel for the first defendant objected to any adjournment of the application. Counsel pointed to what had happened at the earlier hearing and made the point that there was no affidavit material which supported an adjournment being granted.
There was no affidavit lodged in support of the application for an adjournment. Once again, I was provided with an explanation from the bar table. Once again, in the interests of completeness, I should recount what I was told. Mr O'Dea had consulted new solicitors around 6 July - some five days after the hearing. He had then been called overseas on business. When he returned just prior to this hearing, the solicitors whom he had consulted advised that they were not in a position to act for him. He had then consulted the solicitors who appeared at the hearing.
After hearing submissions from counsel, I refused the adjournment. It is always a question of balance as to whether or not to grant an adjournment in circumstances such as this. The starting point, of course, must be that a party to litigation has a right to put before the court all of the matters they say are relevant to a determination of the application. To proceed in circumstances where a party's case is not adequately before the court is a drastic step. But in a case such as this, a party such as the first defendant has the right to have an application determined. The first defendant had conducted itself properly in all respects. It consulted before the issue of the summons to satisfy the provisions of O 59 r 9. The first defendant's solicitors had then agreed with the plaintiffs' solicitors a programming order which was satisfactory to the plaintiffs. The first defendant then had to endure the delay occasioned by an adjournment of the listed hearing in circumstances where the plaintiffs had plenty of time to present all the evidence available and make all submissions necessary to put their position before the court. The plaintiffs were then well aware that they were under time pressure and there was a real risk that if they were not ready at the resumed hearing, no further adjournment would be granted. Yet no material was filed, and no affidavit explaining why that material was not filed was before the court. The interests of justice in this case were against the granting of an adjournment.
The adjournment having been refused, counsel for the plaintiffs indicated he could not proceed. He was of the view that his instructions were inadequate. With leave, he withdrew. Mr O'Dea then represented the plaintiffs. I invited him to make any submissions he thought appropriate in opposition to the application.
Turning then to the application itself, it was supported by two affidavits, one of Colin James Ritchie sworn 1 May 2008 and one of Thanh Binh Nguyen also sworn 1 May 2008. Dealing first with Mr Ritchie's affidavit, he is a director of the first defendant. He says that by offer and acceptance dated 14 July 2006, the first defendant sold the land the subject of the caveats to Nguyen Thanh Binh and Nguyen Thi Don. The seller in the offer and acceptance is described as Solitaire Investments Pty Ltd. However, it was common ground between Solitaire, the first defendant and the purchasers that the seller was incorrectly described. It should have been Albans Farm Pty Ltd. A deed to rectify the offer and acceptance was entered into by the parties.
Mr Ritchie says that the purchasers were keen to proceed to settlement as soon as possible. The problem was the caveat lodged by the plaintiffs. Mr Ritchie says that the purchasers had no interest in the dispute between the plaintiffs and the first defendant. Mr Ritchie says that he believes the purchasers' claim is superior to the plaintiffs' claim and that the caveats should be discharged.
As to the nature of the dispute between the plaintiffs and the first defendant, he has this to say (par 7):
The purchasers are the plaintiffs in action CIV 1227 of 2007 and CIV 1488 of 2007 which actions have now been settled in principle as between the plaintiffs in those actions (the purchasers of the land) and Albans Farm Pty Ltd as proprietor. The properties the subject of those two actions, of this action and CIV 2497 of 2005 have involved no less than four Supreme Court actions, but the effect of lifting the caveats and enabling the properties to settle will be to leave the Court with a single action CIV 2497 of 2005 in which only financial claims will be made by the parties against one another.
In CIV 2497 of 2005, the plaintiffs in this action are two of the three plaintiffs in that action. Albans Farm Pty Ltd is first defendant and Mr Ritchie is second defendant. The statement of claim in that action (filed 3 March 2006) pleads that in or about January 2003, there was an oral agreement between the parties to acquire, subdivide, develop and sell certain land south of Perth. This agreement is referred to in the pleading as the 'Joint Venture Agreement'. It is alleged by the plaintiffs in that action that the lots the subject of the caveats in these proceedings were acquired for the purposes of the Joint Venture Agreement. Essentially, it is said that Albans Farm Pty Ltd and Mr Ritchie breached the terms of the Joint Venture Agreement and that they have refused to recognise the interests of the plaintiffs in that agreement. The prayer for relief in the statement of claim seeks damages, equitable compensation, an account of profits and in relation to Albans Farm Pty Ltd, an order that the plaintiffs be issued with a 25% interest in Albans Farm Pty Ltd and a declaration that the plaintiffs be appointed directors. There is also a claim for a declaration that Albans Farm held the lots on trust for the plaintiffs or alternatively for the plaintiffs and the second‑named defendant (Mr Ritchie) 'in equal shares as tenants in common'.
Returning to these present proceedings, the affidavit of Mr Thanh confirms the offer and acceptance and also confirms the mistake as to the name of the seller which appears in that document. Mr Thanh confirms that he is anxious to settle and is ready, willing and able to do so.
In the circumstances, I was satisfied that the orders sought by the first defendant ought be made. The fact is that there is no evidence which could support the continuation of these caveats. I did take into account an affidavit filed in support of the earlier application to lodge further caveats and to extend the operation of those caveats. The affidavit did not contain any material which would justify the caveats being continued. Furthermore, a reference to the nature of the present plaintiffs' claims in action CIV 2497 of 2005 shows that put at its highest the plaintiffs could only claim an unregistered equitable interest in the land. There is nothing to suggest that this interest could stand in the face of the clear legal entitlement of the purchasers to have the contract completed.
In these circumstances, I made the orders sought by the first defendant.