Permanent Custodians Limited v Bertola

[2015] WASC 301

PERMANENT CUSTODIANS LIMITED -v- BERTOLA [2015] WASC 301

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASC 301
Published:	14/08/2015
Case No:	CIV:1692/2015	Heard:	12 AUGUST 2015
Coram:	MASTER SANDERSON	Delivered:	12/08/15
No of pages:	4	Judgment Part:	1 of 1
Result:	Injunction granted
Category:	B
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Parties:	PERMANENT CUSTODIANS LIMITED as trustee under the Master Trust Deed establishing the Rural Program FRANCIS PETER BERTOLA REGISTRAR OF TITLES
Catchwords:	Property law Application to restrain first defendant from lodging further caveat Turns on own facts
Legislation:	Nil
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : PERMANENT CUSTODIANS LIMITED -v- BERTOLA [2015] WASC 301 CORAM : MASTER SANDERSON HEARD : 12 AUGUST 2015 DELIVERED : 12 AUGUST 2015 PUBLISHED : 14 AUGUST 2015 FILE NO/S : CIV 1692 of 2015 MATTER : An application pursuant to section 138 of the Transfer of Land Act 1893 (WA) in relation to caveat registered number M970191 BETWEEN : PERMANENT CUSTODIANS LIMITED as trustee under the Master Trust Deed establishing the Rural Program

Plaintiff

AND

FRANCIS PETER BERTOLA
First Defendant

REGISTRAR OF TITLES
Second Defendant

Catchwords:

Property law - Application to restrain first defendant from lodging further caveat - Turns on own facts

Legislation:

Nil

Result:

Injunction granted

Category: B

Representation:

Counsel:

Plaintiff : Mr M Holler
First Defendant : Mr F P Bertola
Second Defendant : No appearance

Solicitors:

Plaintiff : Norton Rose Fulbright Australia
First Defendant : In person
Second Defendant : No appearance

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

Nil


1 MASTER SANDERSON: By originating summons issued 12 May 2015, the plaintiff sought an order against the defendant for removal of a caveat over certain property. At the time of filing the originating summons it was the plaintiff's position that the caveat was frustrating the settlement of a Contract of Sale of the property which was originally scheduled for 17 April 2015. The plaintiff was the mortgagee of the property and was exercising its power of sale pursuant to a mortgage registered on 9 November 2004. The application was brought under s 138(2) of the Transfer of Land Act 1893 (WA).

2 The interest the first defendant sought to protect was described in the caveat as 'long term lease as lessee commencing 10/12/2010'. Despite being requested to do so by the plaintiff, the first defendant refused to provide the plaintiff with a copy of the alleged lease. In any event, the grant of any lease without the consent of the plaintiff would have been a breach of the terms of the mortgage and the memorandum of provisions. Furthermore, even if the defendant caveator did in fact have the alleged long term lease it would not prevent the sale of the property by the mortgagee exercising power of sale. There clearly was no serious question to be tried. Put simply, the interest of the prior registered mortgagee is paramount and indefeasible against the alleged subsequent interest of the first defendant caveator which is both unregistered and later in time than the mortgage.

3 By the time this matter came on for hearing the caveat had lapsed pursuant to a 21 day notice issued by the second defendant. What the plaintiff then sought was an order that no further caveat be lodged by the first defendant in relation to this property without leave of the court. The first defendant is a serial caveator, these caveats being entirely without merit in relation to matters involving the plaintiff. A review of this file and the documents lodged therein and other matters in which the first defendant has been involved clearly reveal that to be the case. Accordingly, it was appropriate that an order be made in terms which restricted the capacity of the first defendant to lodge any further caveats.

4 During the course of the hearing the first defendant made two points. First, he maintained as the caveat in question had lapsed there was nothing further to deal with in the application and it should be dismissed.

5 Second, he maintained no costs order should be made against him because the caveat had lapsed and the application was no longer necessary.

6 During the course of the hearing I attempted to explain to the first defendant the main thrust of the plaintiff's argument - that is to say, he (the first defendant) consistently lodged caveats in relation to the property in question where his claims were without any merit. The first defendant completely failed to address that issue. He did say that he did not intend to lodge any further caveats. That may well be the case and if it is he need not be concerned about the terms of the order I made. At present that undertaking (if indeed it was an undertaking) is not in my view sufficient to protect the plaintiff's interests.

7 Accordingly I was prepared to make the order sought by the plaintiff.

8 As to costs, costs follow the event. The plaintiff maintained correctly that the first defendant's position was always without merit. The caveat should not have been lodged in the first place and when the plaintiff sought an order preventing the first defendant lodging further caveats the first defendant should have consented. Clearly he should pay the costs of the application.

9 Against that background I made the following orders:

1. Until further order of the Court, the Second Defendant be and is hereby restrained from registering or otherwise noting on Certificate of Title Vol 271 folio 55A, ('the Property') any further caveats by the First Defendant, except with the leave of the Court to do so.

2. Service of this order on the Second Defendant by facsimile to the 'complex dealings section' (facsimile 08 9273 7364) will constitute proper service on the Second Defendant.

3. The First Defendant be and is hereby restrained whether by himself, alone or with others, by servants, agents or otherwise, including any company of which he is a director, shareholder or in which he holds any direct or indirect interest from lodging any further dealing at Landgate in relation to the Property except with the leave of the Court to do so.

4. The First Defendant do pay the Plaintiff's costs of this application, fixed in the sum of $4,748 payable within 7 days.