PEYTON & ORS -v- MALNIS NOMINEES PTY LTD & ANOR [2003] WASC 136

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASC 136
Case No:	CIV:1475/2003	Heard:	25 JUNE 2003
Coram:	HASLUCK J	Delivered:	22/07/03
No of pages:	17	Judgment Part:	1 of 1
Result:	Application to extend time allowed Application for summary judgment allowed in part
Category:	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

CITATION : PEYTON & ORS -v- MALNIS NOMINEES PTY LTD & ANOR [2003] WASC 136 CORAM : HASLUCK J HEARD : 25 JUNE 2003 DELIVERED : 22 JULY 2003 FILE NO/S : CIV 1475 of 2003 MATTER : Section 138C of the Transfer of Land Act BETWEEN : JOAN MYRICE PEYTON

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

(Page 2)

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…

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.

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Details

Case: [2003] WASC 136
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, the plaintiffs, Joan Myrice Peyton, Philip Patrick Peyton, and William Francis Riley, sought to extend the operation of a caveat over a portion of land adjoining the Jarrahdale Tavern, which they claimed as part of the business they purchased from Malnis Nominees Pty Ltd. The dispute centered on whether the plaintiffs had a caveatable interest in the land, specifically the encroached area, which was not included in the original sale agreement. The court had to decide if the plaintiffs had a reasonably arguable case for a caveatable interest and whether additional relief sought by the plaintiffs could be granted in the context of the application. The court found that the plaintiffs could establish a caveatable interest in the encroached area based on the negotiations and the nature of the business operation, which included the encroached area. However, the court ruled that the additional relief sought by the plaintiffs, such as the subdivision of land and the transfer of the encroached area, could not be granted in the context of the application under section 138C of the Transfer of Land Act. The court allowed the extension of the caveat and dismissed the application for summary judgment regarding the caveatable interest, but dismissed the additional claims for relief. The court will hear from the parties regarding costs and further orders concerning the commencement of proceedings by the plaintiffs.

Orders