Pattinson v Woodford

[2017] WASCA 227

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   PATTINSON -v- WOODFORD [2017] WASCA 227

CORAM:   BUSS P

MURPHY JA
BEECH JA

HEARD:   8 DECEMBER 2017

DELIVERED          :   8 DECEMBER 2017

FILE NO/S:   CACV 107 of 2017

BETWEEN:   RODNEY ALAN PATTINSON

Appellant

AND

JOANNE LOUISE WOODFORD
First Respondent

ANTHONY JAMES WOODFORD
Second Respondent

REGISTRAR OF TITLES
Third Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :PRITCHARD J

Citation  :WOODFORD -v- PATTINSON [No 2] [2017] WASC 334

File No  :CIV 1383 of 2017

Catchwords:

Caveats - Application to extend operation of caveat - Serious question to be tried as to caveatable interest - Balance of convenience - Amendment of caveat - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

First Respondent          :     In person

Second Respondent      :     In person

Third Respondent        :     No appearance

Solicitors:

Appellant:     In person

First Respondent          :     In person

Second Respondent      :     In person

Third Respondent        :     No appearance

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

Woodford v Pattinson [2017] WASC 328

Woodford v Pattinson [No 2] [2017] WASC 334

1. JUDGMENT OF THE COURT:    The appellant has appealed against orders made by Pritchard J on 3 November 2017 in pending action CIV 1383 of 2017 (the Action) in relation to a caveat lodged by the first and second respondents against the appellant's fee simple estate in land known as 40 Leslie Road, Wandi (the Land).

2. After a hearing on 3 November 2017, her Honour ordered, relevantly, that:

   (1)The caveat be amended to:

   (a)forbid the registration of an instrument against the Land unless that instrument is registered subject to the first and respondents' claim; and

   (b)reflect that the first and second respondents' claim their interest in the Land as equitable chargees by virtue of a document described as an 'Acknowledgement and Charge' dated 3 June 2013 and executed by the appellant as a deed.

   (2)The operation of the caveat be extended until further order of the Court.

3. On 20 November 2017, the primary judge published reasons for decision.  See Woodford v Pattinson [No 2] [2017] WASC 334.

4. Her Honour noted in her reasons that there was some confusion in relation to the status of the caveat.  As her Honour explained in Woodford v Pattinson [2017] WASC 328, a judgment in the Action delivered on 31 October 2017 in respect of which reasons for decision were published on 20 November 2017, the first and second respondents had attempted to withdraw the caveat. However, after further consideration, the first and second respondents decided that they wanted to obtain leave to lodge a new caveat over the Land. In the event, the Registrar of Titles had not taken any action to remove the caveat from the register, pending the order of the Court. In those circumstances, at the hearing before her Honour on 3 November 2017, the first and second respondents again sought an order for the extension of the caveat. Her Honour proceeded on the basis that the caveat had not been withdrawn and was therefore able to be extended by an order of the court. In our opinion, her Honour was not in error in proceeding on that basis.

5. The dispute between the appellant and the first and second respondents relates to loans made by the first and second respondents to the appellant at various times since about March 2013.  In about June 2013, the appellant, at the request of the first and second respondents, executed the Acknowledgement and Charge to record the terms on which the loans had been made.  The appellant's signature appears to have been witnessed by Jose Neves.

6. At all material times, the appellant has been the registered proprietor of a fee simple estate in the Land.  In the Acknowledgement and Charge the appellant appears to have created an equitable charge in respect of his fee simple estate to secure the outstanding loans and 'all future monies (if any) due from [the appellant] to [the first and second respondents] for any reason whatsoever together with interest thereon as hereinbefore provided'.  The Acknowledgement and Charge provides for the appellant to pay interest.  The interest is to be calculated as follows:

   A lump sum payment of an amount equal to twenty percent (20%) of the market value of [the Land] as at the date of repayment less the outstanding [principal] sum.

7. The first respondent has sworn in an affidavit that, after the appellant executed the Acknowledgement and Charge, the first and second respondents provided additional loans to the appellant.  The first respondent has deposed that none of the amounts advanced to the appellant have been repaid.  The first respondent has also deposed that in excess of $60,000 remains owing by the appellant to the first and second respondents, in addition to the first and second respondents' claim for interest.

8. The appellant does not dispute that he received loans from the first and second respondents.  However, he does dispute the amount that is owing by way of principal.  There is also a dispute as to the validity and enforceability of the provision for interest.

9. The appellant owes money to a third party which is secured a first registered mortgage against the Land.  That mortgage was registered prior to the lodgement of the first and second respondents' caveat.  The appellant wants the caveat withdrawn because he has entered into an agreement with another third party for the other third party to advance him funds to repay the existing first mortgagee.  According to the appellant, the new financier will not proceed with the transaction unless the caveat is withdrawn.  The appellant has sworn in an affidavit that the existing first mortgagee has made demand under its mortgage and has given notice to the appellant that unless the amount owing under the existing mortgage is repaid by 23 December 2017 the mortgagee will enter into possession of the Land and exercise its power of sale.  The appellant is unable to repay the existing first mortgagee otherwise than pursuant to the proposed transaction with the new financier.

10. The appellant relies on nine 'grounds of appeal'.  The so‑called grounds are not proper grounds of appeal.  They do not contain a succinct statement of alleged errors of law or fact by the primary judge and concise particulars of any alleged errors.  It is apparent from the so‑called grounds and the appellant's submissions in support of them that he seeks in general to litigate before this court the arguments he ran unsuccessfully before her Honour.

11. We are satisfied that the appellant's grounds of appeal are without merit.  Her Honour's orders were correct.  We agree generally with her reasons for decision.

12. It is sufficient, for present purposes, to note the following.

13. First, the first and second respondents have demonstrated that there is a serious question to be tried in relation to the creation of an equitable charge over the Land pursuant to the Acknowledgement and Charge.  Indeed, in our opinion, on the evidence before the primary judge and this court, the first and second respondents have a strongly arguable case in relation to the existence of the equitable charge.

14. Although the appellant contended that he had spoken to various people including lawyers who advised him in effect that the Acknowledgement and Charge is invalid or unenforceable, no steps have been taken by him to set aside the Acknowledgement and Charge.

15. Secondly, the balance of convenience decisively favours the first and second respondents. 

16. If the caveat were to be withdrawn their apparent equitable charge over the Land would be postponed to the mortgage proposed to be registered in favour of the new financier.  There is at least a reasonable possibility that the security they apparently have under the Acknowledgement and Charge would be rendered nugatory depending upon the value from time to time of the Land and the amount secured from time to time by the mortgage in favour of the new financier. 

17. There is no admissible evidence that the new financier is willing to limit the amount secured by its mortgage to an amount not exceeding the amount secured by the existing mortgage or that the new financier is willing to complete the proposed transaction with the appellant on the basis that the first and second respondents' caveat would be withdrawn immediately prior to the registration of the new mortgage and a new caveat would be lodged immediately after the registration of the new mortgage.

18. There is no admissible evidence that the appellant is willing or able to raise a sufficient sum of money for the purpose of making a payment into court of the amount which, on the first respondent's affidavit evidence, is likely to be secured by the equitable charge.

19. The first and second respondents have given an undertaking as to damages in the usual form.

20. There was no error in the primary judge's decision to amend the caveat in the respects that her Honour did.  The amendments did not have the effect of altering the substance of the interest claimed.

21. For these reasons, the appeal must be dismissed.