Palazzo Homes Pty Ltd v Goh

Link copied
Case Copied 19 min read

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   PALAZZO HOMES PTY LTD -v- GOH [2010] WASC 407

CORAM:   LE MIERE J

HEARD:   2 DECEMBER 2010

DELIVERED          :   23 DECEMBER 2010

FILE NO/S:   CIV 2852 of 2010

MATTER                :Section 138C of the Transfer of Land Act 1893 (WA)

BETWEEN:   PALAZZO HOMES PTY LTD

Plaintiff

AND

MARGARET KATHLEEN GOH
TAI HOCK GOH
First Defendants

REGISTRAR OF TITLES
Second Defendant

Catchwords:

Real property - Extension of caveat - Application for amendment of caveat from an absolute caveat to a subject to claim caveat - Whether court has power to make the amendment - Discretion - Balance of convenience - Undertaking as to damages

Legislation:

Transfer of Land Act 1893 (WA), s 137, s 138, s 138B, s 138C

Result:

Application granted

Category:    A

Representation:

Counsel:

Plaintiff:     Mr L D Ayres

First Defendants           :     Mr S R Boyle

Second Defendant         :     No appearance

Solicitors:

Plaintiff:     Minter Ellison

First Defendants           :     Clayton Utz

Second Defendant         :     No appearance

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

Bashford v Bashford [2008] WASC 138

Benson v Benson [2008] WASC 13

Binningup Nominees Pty Ltd v Brogue Tableau Pty Ltd [2004] WASC 14

Brogue Tableau Pty Ltd v Binningup Nominees Pty Ltd [2007] WASCA 179; (2007) 35 WAR 27

Custom Credit Corp Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42

Depsun Pty Ltd v Tahore Holdings Pty Ltd (1990) ANZ Conv Rep 334

Deputy Commissioner of Taxation v Corwest Management Pty Ltd [1978] WAR 129

Devere Holdings Pty Ltd v Verge [2006] WASC 297

Elliott v Blanshard (1970) 17 FLR 7

Hamdan v Widodo [2004] WASC 123

Kerabee Park Pty Ltd v Daley (1978) 2 NSWLR 222

Midland Brick Co Pty Ltd v Welsh [2006] WASC 122; (2006) 32 WAR 287

Midwarren Estates Pty Ltd v Retek & Stivic [1975] VR 575

Multi‑span Constructions (No 1) Pty Ltd v 14 Portland Street Pty Ltd [2001] NSWSC 696

Navarac Pty Ltd v Moondancer Holdings Pty Ltd [2009] WASCA 95; (2009) 40 WAR 150

Nigam v Divjakoski [2010] WASC 185

Percy & Michele Pty Ltd v Gangemi [2010] VSC 530

Porter v McDonald [1984] WAR 271

Powell v In de Braekt [2006] WASC 264

Professional Services of Australia Pty Ltd v Mila Properties Pty Ltd [2004] WASC 30

Queensland Estates Pty Ltd v Co‑ownership Land Development Pty Ltd [1969] Qd R 150

Re The Victorian Farmers' Loan and Agency Co Ltd (1897) 22 VLR 629

Sulinmo Properties Pty Ltd v Malloney (1985) ANZ Conv Rep 25

Veloudos v Young (1981) 56 FLR 182

LE MIERE J: 

Plaintiff lodges caveat

  1. The plaintiff is a builder who contracted with the first defendants (the defendants) to construct a residential building on land in Victoria Avenue, Dalkeith.  A condition of the contract provided that the plaintiff may place a caveat on the land to secure the plaintiff's financial interest until all contractual payments have been made by the defendants.  The plaintiff carried out building works and issued invoices…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Palazzo Homes Pty Ltd v Goh and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2010] WASC 407
Decision Date

CaseChat Overview and Summary

Palazzo Homes Pty Ltd sought an extension of a caveat from an absolute caveat to a subject to claim caveat against Goh. The dispute came before the Supreme Court of New South Wales. The central issue was whether the court had the power to make the amendment to the caveat and if so, whether it should be done in this case. Another consideration was whether the balance of convenience favoured the extension of the caveat and if an undertaking as to damages was necessary.

The court considered that if the caveat were to be amended, the balance of convenience favoured the extension of the operation of the caveat. The court noted that in previous cases, it had been held that balance of convenience was a factor to be considered but that interlocutory removal of a caveat would be unusual if an arguable case was demonstrated. However, in this case, if the caveat's operation was not extended, the plaintiff would lose its priority over the second mortgage to Westpac. The court concluded that the balance of convenience favoured the extension of the operation of the caveat.

The court also considered the requirement for an undertaking as to damages. It found that the usual practice was to require such an undertaking as the price of extending the operation of the caveat. However, the court could dispense with this requirement in appropriate cases. In this case, the court considered it appropriate for the plaintiff to give the usual undertaking as to damages.

The court ordered that the plaintiff's caveat be extended from an absolute caveat to a subject to claim caveat, on the condition that the plaintiff give the usual undertaking as to damages.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

If the caveat is amended then the balance of convenience favours the extension of the operation of the caveat. In Custom Credit Corporation v Ravi Nominees Pty Ltd Owen J (Malcolm CJ & Walsh J concurring) concluded that the balance of convenience was a factor to be considered in an application under s 138 of the Act but that the interlocutory removal of a caveat where an arguable case as to the existence of a caveatable interest has been demonstrated will be unusual. In Navarac Pty Ltd v Moondancer Holdings Pty Ltd [2009] WASCA 95; (2009) 40 WAR 150 Pullin JA (Miller & Newnes JJA concurring) said that balance of convenience issues are usually of little or no significance where the caveator claims an estate in fee simple or a leasehold estate and in those cases it is unusual that once an arguable case is made out by the caveator that there is such a caveatable interest that balance of convenience issues will result in removal. However, if other interests are claimed by the caveator then balance of convenience issues may become decisive. In this case if the operation of the caveat is not extended the plaintiff will lose its priority over the second mortgage to Westpac. I find that the balance of convenience favours the extension of the operation of the caveat. Counsel for the defendants did not submit otherwise. The plaintiff has not offered an undertaking as to damages. Practice direction 4.3.4 [1] provides that the usual undertaking as to damages will be required to be given by any party obtaining the benefit of an order under s 138 of the Act having the effect of extending a caveat lodged under s 137 of the Act pending the determination of the claim in respect of which the caveat was lodged. Counsel for the plaintiff pointed out that the practice direction refers to an order under s 138 of the Act not an order under s 138C of the Act. Furthermore, counsel submitted that the court does not have power to require the plaintiff to give an undertaking as to damages because s 138C of the Act does not confer such a power. Section 138C(2) of the Act does not empower the court to make an order requiring a caveator to give an undertaking as to damages. However, s 138C(2) empowers the court to make an order extending the operation of the caveat on condition that the caveator give the usual undertaking as to damages. The giving of the undertaking is the price for the extension of the operation of the caveat. Practice Direction 4.3.4 [1] says that the usual undertaking will be required to be given by a party obtaining the benefit of an order under s 138 of the Act having the effect of extending a caveat but does not refer to a party obtaining the benefit of an order under s 138C(2) having the effect of extending a caveat. However, it is the usual practice of the court to require such an undertaking as the price of extending the operation of the caveat. The court may dispense with the need for such an undertaking in an appropriate case. However, in this case it is appropriate that the plaintiff give the usual undertaking as to damages.