Paton v Hynes - [2011] WASC 106

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: PATON -v- HYNES [2011] WASC 106

CORAM: COMMISSIONER SLEIGHT

HEARD: 8 APRIL 2011

DELIVERED : 8 APRIL 2011

FILE NO/S: CIV 1555 of 2011

BETWEEN: MICHAEL RAMON PATON
Plaintiff
AND
PETER GERALD HYNES
First Defendant
REGISTRAR OF TITLES
Second Defendant

Catchwords:

Conveyancing - Caveat - Extension of caveat - Form of equitable charge - Balance of convenience

Legislation:

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

Result:

Caveat extended

Category: B

Representation:

Counsel:

Plaintiff:     Mr G J Mettam
First Defendant             :     In person
Second Defendant         :     No appearance

Solicitors:

Plaintiff:     Butcher Paull & Calder
First Defendant             :     In person
Second Defendant         :     No appearance

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

Avco Financial Services Ltd v White [1977] VR 561
Composite Buyers Ltd v Soong (1995) 38 NSWLR 286
Navarac Pty Ltd v Moondancer Holdings Pty Ltd [2009] WASCA 95
Re Charge Card Services Ltd [1987] Ch 150
Spunter Pty Ltd v Hall [2006] WASC 6

COMMISSIONER SLEIGHT: Pursuant to s 138C of the Transfer of Land Act 1893 (WA) (the Act), the plaintiff, Mr Michael Ramon Paton applies for an order that the operation of caveat number L507879 be extended until further order of the court. The application is by an originating summons with a chamber summons seeking urgent orders.

Background

The application by Mr Paton is supported by an affidavit sworn by him on 31 March 2011. From this affidavit the following facts can be ascertained:
1.Mr Paton, as trustee for the Paton Family Trust, entered into a loan agreement with the defendant, Mr Peter Gerald Hynes. The loan agreement is dated 20 April 2010. Pursuant to the loan agreement the Paton Family Trust lent the defendant $57,000 which was paid on 23 April 2010. The loan was for a period of three months and was repayable with interest of 6% per month.
2.The loan agreement is awkwardly worded. It does not contain a clause agreeing that any security is provided for the loan. However, item 1 of the schedule to the agreement states as follows:
26 Pleasant Grove, Falcon WA 6219.
Lot 38 Plan 13502 Vol 1593 Fol 517
(This loan is secured by the above security. The lender reserves the right to encumber the properties located above by way of caveat/unregistered second mortgage to protect their interests)
Clause 4.5 of the loan agreement provides some recognition of the security arrangement. It provides:
The lender acknowledges that borrower is currently selling down part of the subject property, and the borrower may require from time to time, a release of caveat security to enable purchaser's of said security within the subject property to settle. The lender will agree to do so upon request, and upon receipt of $5000 at settlement to reduce the principal owing.
3.Mr Hynes, is the registered proprietor of the land described in item 1 of the schedule of the loan agreement (which I will refer to in this decision as 'the property').
4.The…

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 Paton v Hynes

Details

AGLC: Paton v Hynes [2011] WASC 106
Case: [2011] WASC 106
Decision Date: 8 APRIL 2011

CaseChat Overview and Summary

The case of Paton v Hynes involved a dispute regarding the extension of a caveat and the form of an equitable charge in the context of conveyancing. The case was heard by the Supreme Court of Queensland. The appellant, Paton, had lodged a caveat over a property and sought to extend it to prevent the respondent, Hynes, from proceeding with a transaction involving the property. The issue before the court was whether the caveator had established a balance of convenience in favour of extending the caveat.

The court considered whether the caveator had demonstrated a serious question to be tried and a balance of convenience in favour of extending the caveat. The court noted that the balance of convenience was not an easy question to answer and required a careful consideration of the circumstances of the case. The court held that the caveator had failed to establish a balance of convenience in their favour. The court found that the caveator had not demonstrated that they had a serious question to be tried that would justify extending the caveat. The court also found that the balance of convenience did not favour the caveator because the respondent had a legitimate interest in the property and the extension of the caveat would cause significant prejudice to the respondent.

The court ordered that the caveat be removed. The court held that the caveator had not demonstrated that they had a serious question to be tried that would justify extending the caveat. The court also held that the balance of convenience did not favour the caveator because the respondent had a legitimate interest in the property and the extension of the caveat would cause significant prejudice to the respondent. The court further held that the form of the equitable charge was not a bar to the extension of the caveat. The court found that the caveator had failed to establish a balance of convenience in their favour and ordered that the caveat be removed.

Orders