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 DefendantsREGISTRAR 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
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…
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- Case
- [2010] WASC 407
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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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.