Peyton v Malnis Nominees Pty Ltd
[2003] WASC 136
PEYTON & ORS -v- MALNIS NOMINEES PTY LTD & ANOR [2003] WASC 136
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 136 | |
| Case No: | CIV:1475/2003 | 25 JUNE 2003 | |
| Coram: | HASLUCK J | 22/07/03 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Application to extend time allowed Application for summary judgment allowed in part | ||
| B | |||
| PDF Version |
| Parties: | JOAN MYRICE PEYTON PHILIP PATRICK PEYTON WILLIAM FRANCIS RILEY MALNIS NOMINEES PTY LTD (ACN 008 871 814) THE REGISTRAR OF TITLES (ACN 009 310 098) |
Catchwords: | Caveats Application to extend operation of caveat Caveator contending for equitable estate or interest pursuant to contract of sale Need for implied term or rectification to sustain claim Effect of seeking orders beyond mere application to extend time Turns on own facts |
Legislation: | Liquor Licensing Act 1988 Property Law Act 1969, s 122, s 123 Rules of the Supreme Court 1971, O 16 Transfer of Land Act 1893, s 137, s 138B, s 138C |
Case References: | Eades & Ors v Reilly & Anor, unreported; SCt of WA; Library No 980675; 20 November 1998 Jandric v Jandric & Anor [1999] WASC 22 Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42 Executive Seminars Pty Ltd v Peck [2001] WASC 229 Midland Brick Co Pty Ltd v Welsh [2002] WASC 248 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- PHILIP PATRICK PEYTON
WILLIAM FRANCIS RILEY
Plaintiffs
AND
MALNIS NOMINEES PTY LTD (ACN 008 871 814)
First Defendant
THE REGISTRAR OF TITLES (ACN 009 310 098)
Second Defendant
Catchwords:
Caveats - Application to extend operation of caveat - Caveator contending for equitable estate or interest pursuant to contract of sale - Need for implied term or rectification to sustain claim - Effect of seeking orders beyond mere application to extend time - Turns on own facts
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Legislation:
Liquor Licensing Act 1988
Property Law Act 1969, s 122, s 123
Rules of the Supreme Court 1971, O 16
Transfer of Land Act 1893, s 137, s 138B, s 138C
Result:
Application to extend time allowed
Application for summary judgment allowed in part
Category: B
Representation:
Counsel:
Plaintiffs : Mr C C K Ko
First Defendant : Mr C E Chenu
Second Defendant : No appearance
Solicitors:
Plaintiffs : Brickhills
First Defendant : Durack & Zilko
Second Defendant : No appearance
Case(s) referred to in judgment(s):
Eades & Ors v Reilly & Anor, unreported; SCt of WA; Library No 980675; 20 November 1998
Jandric v Jandric & Anor [1999] WASC 22
Case(s) also cited:
Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42
Executive Seminars Pty Ltd v Peck [2001] WASC 229
Midland Brick Co Pty Ltd v Welsh [2002] WASC 248
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1 HASLUCK J: The plaintiffs were the purchasers of a business known as the Jarrahdale Tavern situated at 640 Jarrahdale Road, Jarrahdale. A disagreement has now arisen between the plaintiffs and the first defendant, Malnis Nominees Pty Ltd, being the vendor of the subject business, as to the extent of the property the subject of the sale. It was against this background that the plaintiffs proceeded to lodge a caveat claiming an estate or interest in fee simple as equitable purchasers in a portion of land adjoining the tavern premises.
Procedural matters
2 The first defendant has taken steps to have the caveat removed. This led to the plaintiff issuing an originating summons in the manner allowed for by s 138C of the Transfer of Land Act 1893. The plaintiff seek orders that the operation of caveat No I219554 lodged against the subject land be extended. The originating summons was accompanied by the affidavit of Joan Myrice Peyton sworn 28 April 2003 to which is exhibited a copy of a statutory declaration sworn by the deponent on 26 August 2002 in support of the caveat.
3 The plaintiffs' originating summons seeks also some additional relief arising out of the matters in issue between the parties including an order for the subdivision of certain land.
4 Programming orders and directions were made with the result that, as a consequence of an order in Chambers on 7 May 2003, the caveat has been extended until the determination of the plaintiffs' application.
5 The first defendant contends that the plaintiffs not only lack a caveatable interest in the subject land but also that they are not entitled to the additional relief sought in the originating summons. The first defendant says that the Court lacks power to make such orders in respect of proceedings commenced pursuant to s 138C of the Act. The first defendant has therefore applied for summary judgment in respect of the issues raised by the plaintiffs' originating summons.
6 In summary, then, I have before me the plaintiffs' summons for orders to extend the operation of the subject caveat pursuant to s 138C of the Act. I must also deal with the issues raised by the first defendant's application for summary judgment pursuant to O 16 of the Rules of the Supreme Court.
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7 I understand that the second defendant, The Registrar of Titles, will simply abide by any ruling made by the Court.
Background
8 Prior to the commencement of negotiations between the parties for the sale of the subject business, the first defendant was the registered proprietor of two adjoining pieces of land fronting Jarrahdale Road and known respectively as 640 and 630 Jarrahdale Road.
9 The former piece of land is correctly described as Lot 123 on Diagram 6150 being the land contained in Certificate of Title Volume 1392 Folio 433. The buildings and improvements comprising the Jarrahdale Tavern lie entirely within the boundaries of Lot 123. However, it was common ground at the hearing before me that the area the subject of the relevant licence granted pursuant to provisions of the Liquor Licensing Act 1988 embraces not only the buildings and improvements on Lot 123 but a scallop-shaped portion of land adjoining the improvements. This extends into the adjoining or neighbouring land known as 630 Jarrahdale Road.
10 The neighbouring piece of land known as 630 Jarrahdale Road is correctly and fully described as Lot 21 on Diagram 76429 being the land contained in Certificate of Title Volume 1856 Folio 668.
11 For ease of reference, I will henceforth refer to the land known as 640 Jarrahdale Road upon which the buildings and improvements stand as "Lot 123". I will refer to the neighbouring land known as 630 Jarrahdale Road as "Lot 21".
12 I pause to say that on the plaintiffs' case the business known as Jarrahdale Tavern included not only the building and improvements on Lot 123 but also an outdoor beer garden situated partly within Lot 123 and partly within the boundaries of Lot 21. The beer garden comprises the scallop-shaped portion of land attached to the buildings and improvements I mentioned earlier, being an area lying within the boundaries of the liquor licence.
13 On the plaintiffs' case, patrons of the licensed premises also make use of vacant ground lying just outside the beer garden. They use the area in question for parking. Thus, on the plaintiffs' case, the business known as the Jarrahdale Tavern was being conducted not only upon the whole of the land comprising Lot 123 (on which the buildings and a portion of the
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- beer garden were situated) but also upon a rectangular portion of Lot 21 (on which a portion of the beer garden and some vacant land used for parking was situated).
14 The rectangular portion of land I have just referred to is marked "A" on the sketch plan exhibited to this judgment. The sketch plan appears at page 40 of the Peyton affidavit and is the plan referred to in the subject caveat as a means of identifying that portion of Lot 21 affected by the caveat. The portion marked "A" on the plan is called the "encroached area" in the Peyton affidavit.
15 For ease of reference, and so as to conform to the description in the Peyton affidavit, I will call the whole of the rectangle marked "A" (which lies entirely within the boundaries of Lot 21) the "encroached area". I will refer to that portion of the encroached area which, on the plaintiffs' case, is said to form part of the beer garden, as that portion of the beer garden lying within the encroached area. I note in passing that upon the evidentiary materials before me, including various photographs, the encroached area is not defined clearly by fences or walls. Likewise, the beer garden is not defined by fences or walls and consists essentially of outdoor tables and chairs situated in the vicinity of the building and improvements comprising the Jarrahdale Tavern.
Negotiations
16 The first named plaintiff says in her affidavit that at all material times negotiations to purchase the business were conducted with Ms Kerry-Ann Boucaut, a director of the defendant company. She says in her affidavit that during a period of approximately four months leading up to the entering into the relevant contracts of sale, she conducted numerous inspections of the business and was informed by Ms Boucaut and the defendant company's selling agent, Mr Lance White, that the business and everything associated with it including all of the land it was located on was being sold by the defendant company.
17 She says further that during her inspections she closely observed the custom and operation of the business and noticed that customers of the business were frequently using and accessing the encroached area. She also walked around the whole area of the business with Ms Boucaut on a number of occasions (including the encroached area) and was told by Ms Boucaut words to the effect that this whole area was part of the business and land being sold by the defendant company.
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18 I pause to observe that the defendant company relies upon an affidavit of Kerry-Ann Boucaut sworn 10 May 2003 in which the assertions made by Ms Peyton are contested. Ms Boucaut goes on to say that she was unaware, until the matter was raised by the plaintiffs, that a portion of the licensed area of the Jarrahdale Tavern encroached on Lot 21. She acknowledges that the defendant company has not erected a fence on the boundary between Lot 123 and Lot 21 with the result that access to the tavern building can be easily obtained from the encroached area. The stance of the defendant company is that the business purchased by the plaintiffs was entirely located on Lot 123.
Contractual arrangements
19 It was common ground at the hearing before me that the negotiations between the parties led to the submission by the plaintiffs of two written offers on Real Estate Institute of WA printed forms which were capable of acceptance and were in fact accepted on behalf of the defendant company on or about 21 February 2002.
20 The agreements thus constituted consisted of, first, a contract for sale of land by offer and acceptance in which the plaintiffs contracted to purchase the land described in the schedule and all improvements thereon for the sum of $515,000. The property is described in the schedule as the land situated and known as Jarrahdale Tavern and being Lot 123 on Diagram 6150 and being the whole of the land contained in Certificate of Title Volume 1392 Folio 433.
21 The land sale document incorporates the joint form of general conditions for the sale of land. Clause 11 of the standard form conditions concerning vendor's representations and undertakings contains an undertaking in sub-paragraph 4 that all buildings and improvements are on or within the boundaries of the land and so far as the vendor is aware, all dividing fences and walls are on the boundaries of the land. By cl 9(1) no error or misdescription of the property will annul the sale, but compensation must be made or given, as the case requires.
22 The second agreement constituted by an offer and acceptance is an agreement to purchase a business (as a going concern). The relevant document evidences acceptance of an offer to purchase the goodwill of the business, including the business or trade name (if any), and plant, furniture, fixtures, fittings, chattels, stock in trade and other assets described in the particulars.
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23 The description of business and assets to be purchased includes reference to the goodwill of the tavern business now carried on by the vendor at 640 Jarrahdale Road, Jarrahdale under the name of Jarrahdale Tavern. Reference is made also to an inventory of plant and equipment.
24 There was no suggestion at the hearing before me that the inventory in question contained any details bearing upon the matter in issue. However, it is of some significance that the business sale agreement contained an annexure "A" whereby the contract was said to be subject to a condition precedent that the prior approval of the Director of Liquor Licensing of the proposed transfer of the licence within 75 days of the date of acceptance was a pre-requisite of the contract taking effect.
25 Clause 21(3) of the standard conditions provided that there were not at the date of the contract any restrictions on the use of the premises which would hinder or prevent the purchaser from using or enjoying the premises for the business. Clause 10 provided that the vendor would do all things necessary for effectively vesting in the purchaser the property agreed to be sold including executing a transfer of the business and/or trade names and ensuring that all necessary licences and/or franchises (if any) in respect of the premises and business were granted or assigned to the purchasers.
Settlement
26 I understand that settlement pursuant to the land sale agreement and the business sale agreement was effected on 10 June 2002 and on that date the plaintiffs became the proprietors and took possession of the business.
27 Ms Peyton says in her affidavit that approximately two weeks after settlement the defendant company's real estate agent informed her that he was marketing Lot 21 for sale. It was at that point that it came to the attention of the plaintiffs that not all of the tavern business was located on Lot 123 and that part of the encroached area was located and constructed on the neighbouring land known as 630 Jarrahdale Road, being Lot 21.
28 Ms Peyton goes on to refer to certain documents and events which are said to establish that the defendant company was aware of the actual physical location of the boundary between Lot 123 and Lot 21 prior to and at the time of the sale and that part of the business (on the plaintiffs' case) was actually located on Lot 21.
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29 The Liquor Licensing Division has now advised the plaintiffs that unless agreement can be reached between the plaintiffs and the defendant company evidencing that the plaintiffs will have and will retain a right to the portion of the licensed premises on Lot 21 (that is, that portion of the beer garden situated on Lot 21 and lying within the encroached area) the plaintiffs will have to make an application for redefinition of the licensed premises so that the current licensed area on Lot 21 is excised. This prompted the plaintiffs to lodge caveat No I219554 over that part of Lot 21 comprising the encroached area, namely, the area marked with the letter "A" on the sketch I referred to earlier.
The nature of the claim
30 It follows from the narrative to this point that the caveat affects the land I have called the encroached area. The estate or interest being claimed is "an estate or interest in fee simple as equitable purchaser".
31 The caveator claims the estate or interest by virtue of "a claim in equity and at law arising from an agreement to purchase a business as a going concern dated 21 February 2002 and a Contract for Sale of Land by Offer and Acceptance dated 21 February 2002 both made between the Registered Proprietor as vendor and the Caveators as purchasers."
32 The supporting Peyton statutory declaration refers to the events preceding the purchase of the business and contains an assertion in par 6 that during the course of the negotiations the defendant company represented to Joan Peyton that all of the business was located on Lot 123. She says further that not all of the business is in fact located on Lot 123. She is informed and verily believes that a portion of the licensed beer garden of the business is constructed on the neighbouring land, that is to say, Lot 21. She says that the plans of the Jarrahdale Tavern lodged with the Liquor Licensing Division show all of the licensed area of the business.
The originating summons
33 It emerges from earlier discussion that lodgement of the caveat led to the plaintiffs being obliged to issue an originating summons pursuant to s 138C of the Transfer of Land Act.
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34 The relief claimed by the plaintiffs is as follows:
"1. An estate or interest in fee simple of that part of the land ('the Subdivided Land') upon which Caveat No I219554 was lodged with the Registrar of Titles on 29 August 2002 and being within the land on Lot 21 on Diagram 76429 contained in Certificate of Title Volume 1856 Folio 668 ('the Land').
2. The First Defendant do execute all such documents that are necessary to enable the Land to be subdivided and a new certificate of title issued for the Subdivided Land.
3. The First Defendant do execute all such documents that are necessary to enable the Subdivided Land to be transferred to the Plaintiffs.
4. The operation of Caveat No I219554 lodged over the Subdivided Land be extended until further order.
5. Such other orders as the Court deems appropriate."
35 It will be useful at this point to look at the statutory provisions and legal principles bearing upon an application of this kind.
Legal principles
36 Section 137 of the Transfer of Land Act 1893 provides that any person claiming "any estate or interest in land" under any unregistered instrument, document or writing may lodge a caveat with the Registrar in an approved form forbidding the registration of any person as transferee or proprietor of and of any instrument affecting such estate or interest either absolutely or until after notice of the intended registration or dealing be given to the caveator or unless such instrument be expressed to be subject to the caveator's claim.
37 The Transfer of Land Act was amended in 1996 to introduce new provisions concerning the circumstances in which certain caveats would lapse and authorising the Court to extend the operation of those caveats.
38 Section 138B allows for a notice to be served upon the caveator to the effect that unless the caveator obtains an order from the Supreme Court extending the operation of the caveat within 21 days or such period as is specified in the Court order the caveat will lapse.
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39 Section 138C(2) provides that on the hearing of an application for an order extending the operation of the caveat the Supreme Court may make an order for extension or such other orders as it thinks fit concerning the caveat if it is satisfied that the caveator's claim has or may have substance.
40 The application made by the plaintiffs in the present case is made pursuant to s 138C of the Transfer of Land Act.
41 The relevant principles upon which the Court is to act in regard to an application of this kind are reflected in the decision of this Court in Jandric v Jandric & Anor [1999] WASC 22.
42 Commissioner Buss QC said this in paras 24 - 26:
"24. As I have mentioned previously, the plaintiff must demonstrate on the evidence that his claim to a caveatable interest in the Land raises a serious question to be tried. If there is a serious question to be tried, the question will not, except in the most exceptional circumstances, be determined on originating summons. See Porter v McDonald [1984] WAR 271 at 276; Halse v Embling, unreported; FCt SCt of WA; Library No 970734; 22 December 1997. It is not appropriate to attempt to resolve conflicts of evidence on affidavit. See Eng Mee Yong (supra) at 341; Halse (supra) per Parker J at page 4. As Brinsden J observed in Deputy Commissioner of Taxation v Corwest Management Pty Ltd [1978] WAR 129 at 141:
'… the jurisdiction granted by section 138 should not be exercised so as to remove a caveat unless the case is one in which it is patently clear that the estate or interest sought to be protected cannot be made out and that degree of clarity will not emerge if there are disputed questions of fact, when the respondent should be left to proceed by way of action to establish the claimed interest or estate.'
25. Accordingly, if a caveator is able to demonstrate a reasonably arguable case as to the existence of a caveatable interest, the ordinary course is for the caveat to remain and the disputed question to be left for trial by writ of summons with pleadings. However, a caveator's
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- claim must, in fact and law, be more than merely frivolous or vexatious, and it must appear from the evidence on the originating summons that the caveator might ultimately succeed in establishing his caveatable interest. See Halse (supra) per Parker J at page 14.
- 26. In my opinion, these principles, which have been developed in the context of applications under s 138 of the Act, apply to an application under s 138C."
43 It emerges, then, that it is only a person who has or claims a legal or equitable interest in land in the nature of an estate or equitable claim who can lodge a caveat. If a claimant has or arguably has such an estate or interest in land then it is open to the Court to make an order extending the operation of the caveat but usually upon the basis that the claimant will be obliged to commence legal proceedings independently of the originating summons issued under s 138C in order to sustain the claim.
44 It follows from this that in responding to an originating summons issued pursuant to s 138C of the Transfer of Land Act seeking an order that the operation of a caveat be extended, I am not required to make a final determination as to the rights of the parties unless it is clear from the materials before me that the caveator's claim to an estate or interest in the subject land cannot succeed. If it is clear that the caveator's claim to an interest in the land is without merit then it is open to the Court to refuse to grant an extension with the result that the caveat will lapse.
45 The conventional wisdom is that it would not be wise for the Court to attempt to resolve disputed issues of fact upon the basis of affidavit evidence, and it is for that reason that, with a view to maintaining the status quo pending resolution of the dispute, the life of a caveat will be extended in an appropriate case to the intent that the matters in issue between the parties will be resolved in the course of legal proceedings brought by the claimant.
The issues in the present case
46 Counsel for the defendant company submitted that the plaintiffs' claim to an equitable estate or interest in the land lacked substance. The caveat itself states that the estate or interest being claimed is an estate or interest in fee simple as equitable purchaser arising from an agreement to purchase a business as a going concern dated 21 February 2002 and a contract for sale of land by offer and acceptance dated 21 February 2002.
(Page 12)
- He pointed out that the description of the land being sold in the land sale agreement was limited to a precise description of the title particulars concerning Lot 123. It therefore could not be said by the plaintiffs that the encroached area forming part of the neighbouring Lot 21 formed part of the sale. The business sale agreement was equally explicit. The subject matter of the sale was various constituents of the business such as goodwill, plant, equipment and stock and it was therefore not open to the plaintiffs to contend that the encroached area was included within the subject matter of the sale.
47 The plaintiffs sought to answer these contentions by drawing attention to various features of the negotiations between the parties as detailed by Ms Peyton in her affidavit and the statutory declaration supporting the caveat. According to counsel for the plaintiffs, the negotiations contained a representation that the tavern business was being conducted on land which included the encroached area. This could be inferred not only from what was said during the course of the negotiations but also from the presence of a liquor licence underlying the conduct of the business which embraced the beer garden, and thus a portion of the encroached area. Counsel placed some emphasis upon cl 10 of the business sale agreement which provided that the vendor would do all things necessary for effectively vesting in the purchaser all necessary licences in respect of the premises and business.
48 Furthermore, in the land sale agreement the description of property commences by referring to the land situated at and known as "Jarrahdale Tavern". It was true that this was followed by a precise description of land by reference to the relevant certificate of title. However, in the circumstances of the case, counsel contended, there was a degree of ambiguity concerning the meaning of the term "Jarrahdale Tavern" which would permit the plaintiffs to lead parol evidence as to what land comprised the Jarrahdale Tavern and whether the term embarrassed not only Lot 123 but also the encroached area.
49 Counsel for the plaintiffs said further, and in the alternative, that in proceedings to establish the plaintiffs' claim it would be open to the plaintiffs to lead evidence sufficient to establish that the land sale agreement and the business sale agreement should be rectified upon the basis that they did not truly reflect the agreement negotiated by the parties whereby the subject matter of the contractual arrangements between the parties included the encroached area or, at least, that portion of the beer garden lying within the encroached area. Further, representations made during the course of the negotiations gave rise to an implied term that the
(Page 13)
- sale of the Jarrahdale Tavern included the encroached area. In the circumstances of the present case, such a term conformed to the requirements that are usually thought to be necessary in order to establish that an agreement is subject to an implied term, namely, that the implied term is necessary to give business efficacy to the transaction, it is reasonable and equitable, it is so obvious that it need not be stated, it is capable of clear expression and is consistent with the express terms of the agreement made.
50 The plaintiffs contended also by way of a further plea in the alternative, that representations made by or on behalf of the vendor during the course of the negotiations were such as to afford to the plaintiffs an enforceable claim for compensation pursuant to the contractual provisions or an entitlement to damages. This gave rise to a state of indebtedness between the parties with the result that the plaintiffs were entitled to an equitable lien in respect of the encroached area. The nature of this lien fell within the description of the equitable estate or interest in the encroached area referred to in the subject caveat. In regard to this line of argument the plaintiffs placed reliance upon Eades & Ors v Reilly & Anor, unreported; SCt of WA; Library No 980675; 20 November 1998.
Conclusion
51 It emerges from my review of the legal principles that it is not customary for the Court to attempt to resolve disputed issues of fact upon the basis of affidavit evidence in respect of an application for relief pursuant to s 138C of the Transfer of Land Act. It is enough that it appears from the evidence on the originating summons that the caveator might ultimately succeed in establishing the estate or interest in the land contended for. The caveat will only be allowed to lapse if it is demonstrated to be without merit as a matter of law or having regard to the facts and matters relied upon by the caveator.
52 I consider that in the circumstances of the present case the plaintiffs can mount an arguable case that they have a caveatable interest in the land. As a matter of contractual interpretation, I consider that I am obliged to give some weight to the fact that the property the subject of the land sale agreement is described as the Jarrahdale Tavern, and that there is evidence before me that the licensed area comprising the tavern included a portion of the encroached area.
53 In the event of legal proceedings being commenced by the plaintiffs, it will be a matter for evidence as to what exactly comprised the
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- Jarrahdale Tavern and whether it was thought to include the whole of the encroached area. It will be necessary to determine what representations, if any, were made during the course of the negotiations and whether they were made with the authority of the vendor. However, these are matters of an evidentiary kind which will have to be resolved at the trial of the action.
54 Further, in the event of it being held that the encroached area does not fall within the subject matter of the sale upon the proper interpretation of the relevant agreements, I consider that there is a serious issue to be tried as to whether the agreements should be rectified. There is evidence before me on the affidavits, including photographic evidence, that the business included the operation of outdoor areas.
55 Accordingly, I consider that an order should be made for the subject caveat to be extended for a sufficient period to enable the plaintiffs to commence legal proceedings for specific performance or other relief with a view to substantiating the equitable estate or interest claimed in the land. This determination makes it unnecessary for me to express a view about other matters relied upon by the plaintiffs including the equitable lien plea and a contention based upon s 122 and s 123 of the Property Law Act 1969 concerning the power of the Court to grant special relief in cases of encroachment.
56 It follows from my conclusion that the plaintiffs have a caveatable interest in the land, that the application for summary judgment made by the defendant company in respect of that issue will be dismissed. However, I do consider that the additional claims for relief advanced by the plaintiffs in the originating summons should not be granted upon the basis that it is not open to the Court to grant relief of such a kind in respect of an application brought pursuant to s 138C of the Transfer of Land Act. I do not find it necessary to make any order for summary judgment in respect of those matters. It will be sufficient simply to dismiss those parts of the plaintiffs' claim for relief.
Summary
57 The plaintiffs' application for an order extending the operation of caveat No 1219554 will be allowed upon terms to be determined upon the handing down of this judgment. The first defendant's application for summary judgment will be allowed as to par 2 and par 3 of the originating summons. I will hear from the parties as to costs and as to the further
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- orders and directions to be made concerning the commencement of proceedings by the plaintiffs with a view to substantiating their claim.
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