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Pascoe v Pamela McKessar

Pascoe v Pamela McKessar

Case [2019] WASC 229 3 July 2019

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   PASCOE -v- PAMELA MCKESSAR [2019] WASC 229
CORAM:   HILL J
HEARD:   6 JUNE 2019
DELIVERED          :   3 JULY 2019
FILE NO/S:   CIV 1058 of 2019
BETWEEN:   JOHN DURHAM PASCOE
Applicant
AND
PAMELA MCKESSAR
First Respondent
REGISTRAR OF TITLES
Second Respondent

Catchwords:

Caveats - Application to extend the operation of three caveats - Whether applicant has established that his claim to an interest in the land has or may have substance - Balance of convenience - Whether caveats may be amended in the manner sought by the applicant - Application for amendment of caveats from absolute caveats to subject to claim caveats - Application for amendment to description of parties in caveat - Undertaking as to damages - Turns on own facts

Legislation:

Interpretation Act 1984 (WA)
Transfer of Land Act 1893 (WA)

Result:

Applications allowed

Category: B

Representation:

Counsel:

Applicant	:	Mr T H Offer
First Respondent	:	In Person
Second Respondent	:	No appearance

Solicitors:

Applicant	:	Michael Rogers & Associates
First Respondent	:	In Person
Second Respondent	:	No appearance

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

Binningup Nominees Pty Ltd v Brogue Tableau Pty Ltd [2004] WASC 14
Bride v The Registrar of Titles [2015] WASC 11
Chen v Sunshine Light Property Pty Ltd [2017] WASC 14
Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42
Deputy Commissioner of Taxation v Corwest Management Pty Ltd [1978] WAR 129
Docklands Press v Stewart [2014] VSC 536
Midland Brick Co Pty Ltd v Lilley, (Unreported, WASC, Library No 2214, 27 September 1991)
Midland Brick Co Pty Ltd v Welsh (2006) 32 WAR 287
Palazzo Homes Pty Ltd v Goh [2010] WASC 407
Wallace v Perkins [2009] WASC 154
Woodford v Pattinson [No 2] WASC 334
Yaran Holdings Pty ltd v Goldsmith 7 Pty Ltd [2014] WASC 171

HILL J:

By originating summons filed 14 January 2019, the applicant seeks to extend the operation of three caveats ('Caveats') pursuant to the Transfer of Land Act 1893 (WA) s 138C.
The Caveats are currently in the form of 'absolute caveats'. That is, they absolutely forbid the registration of any instrument affecting the estate or interest claimed by the applicant in the land.
By chamber summons filed 18 February 2019, the applicant seeks orders to amend the Caveats from absolute caveats to subject to claim caveats, that is, caveats that forbid the registration of any instrument affecting the estate or interest claimed by the applicant unless such instrument be expressed to be subject to the claim of the applicant. By chambers summons filed 8 May 2019, the applicant seeks orders to amend the description of the applicant and first respondent in the Caveats from, respectively, 'lender' and 'borrower' to 'mortgagee' and 'mortgagor'.
The applications were listed for hearing on an urgent basis before Acting Justice Strk on 21 January 2019 and 13 March 2019. On 22 February 2019, Acting Justice Strk extended the operation of the Caveats until further order of…

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 Pascoe v Pamela McKessar

Details

AGLC: Pascoe v Pamela McKessar [2019] WASC 229
Case: [2019] WASC 229
Decision Date: 3 JULY 2019

CaseChat Overview and Summary

The application in the Federal Circuit Court was brought by Pascoe, the registered proprietor of certain land, seeking the removal of three caveats entered by Pamela McKessar. The dispute arose from McKessar's claims of an interest in the land, which she sought to protect through the entry of the caveats. Pascoe argued that the caveats were invalid and sought their removal, while McKessar maintained that her claims to an interest in the land were valid and sought to extend the operation of the caveats.

The legal issues before the court were whether the applicant had established that his claim to an interest in the land has or may have substance and whether the caveats could be amended in the manner sought by the applicant. The court had to consider whether the applicant had a bona fide claim to an interest in the land, which had or might have substance. The court also had to consider whether the balance of convenience favoured the continuation of the caveats and whether the caveats could be amended to reflect the true nature of the applicant's claim. The court further had to consider whether the description of the parties in the caveats could be amended to reflect the true identity of the applicant.

The court found that the applicant had established that his claim to an interest in the land had or may have substance. The court also found that the balance of convenience favoured the continuation of the caveats and that the caveats could be amended to reflect the true nature of the applicant's claim. The court held that the description of the parties in the caveats could be amended to reflect the true identity of the applicant. The court made orders for the amendment of the caveats and for the description of the parties in the caveats to be amended. The court further made an order for the applicant to provide an undertaking as to damages.

Orders