JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: PITT -v- WILKINS [2024] WASC 185
CORAM: MUSIKANTH J
HEARD: 21 MARCH 2024 & 29 APRIL 2024
DELIVERED : 17 MAY 2024
FILE NO/S: CIV 1305 of 2024
BETWEEN: SANDRA KAYE PITT
Plaintiff
AND
CHARLES EDWARD WILKINS by his guardian ad litem LARA KRISTINE CARROLL
First Defendant
REGISTRAR OF TITLES
Second Defendant
Catchwords:
Property - Real property - Application for extension of caveat - Whether applicant's claim has or may have substance - Caveatable interest must be proprietary interest in land - Underlying claim lacks substance
Legislation:
Property Law Act 1969 (WA) s 34 and s 35
Transfer of Land Act 1893 (WA) s 138B and s 138C
Result:
Application dismissed, interim extension of caveat discharged
Category: B
Representation:
Counsel:
| Plaintiff | : | Ms M McDiarmid |
| First Defendant | : | Mr P G G Jebb |
| Second Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | DFG Legal |
| First Defendant | : | Jebb Legal |
| Second Defendant | : | No appearance |
Case(s) referred to in decision(s):
Bashford v Bashford [2008] WASC 138
Borambil Pty Ltd v O'Carroll [1972] 2 NSWLR 302
Casella v Parkridge Group Pty Ltd [2023] WASC 224
Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394
Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42
Fleming v New South Wales (unreported, NSWSC, Young J, 10 November 1997)
Legoine v Hateley [1983] HCA 11; (1983) 152 CLR 406
Litopoulos v Indiana Holdings Pty Ltd [2021] WASCA 88
Q (a pseudonym) v E Co (a pseudonym) [2020] NSWCA 220
Reeves v Reeves [2024] NSWSC 134
Sidhu v Van Dyke [2014] HCA 19; (2014) 251 CLR 505
Sotirianakos v Commissioner of Highways [2018] SASC 16; (2018) 131 SASR 130
Thorner v Major [2009] UKHL 18; [2009] 1 WLR 776 (HL)
Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387
MUSIKANTH J:
Introduction
These reasons concern an application by the plaintiff dated 18 March 2024 for an order that the caveat lodged against a property in Armadale (Property) be extended pursuant to s 138C of the Transfer of Land Act 1893 (WA) (TLA).
After hearing the matter on an urgent basis on 21 March 2024, I granted an interim extension of the caveat.
I heard from the parties further on 29 April 2024.
For the reasons that follow, I dismiss the application and order that the interim extension of the caveat be discharged.
Background
The plaintiff has resided at the Property since December 1992.
She is one of five children of the first defendant, Charles Edward Wilkins (plaintiff's father), the registered proprietor of the Property.
The plaintiff's father is currently 103 years old and lives in an aged care home.
The plaintiff's mother, and former joint tenant of the Property, died in September 2013.
Neither of the plaintiff's parents have ever lived at the Property.
According to the plaintiff, her parents purchased the Property in November…
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- AGLC
- Pitt v Wilkins [2024] WASC 185
- Case
- [2024] WASC 185
- Decision Date
CaseChat Overview and Summary
The court found that the plaintiff had not demonstrated an arguable case as to the existence of a caveatable interest in the property. The court held that for a caveat to be valid, it must be based on a proprietary interest in the land, and the plaintiff had not shown such an interest. The court also found that the plaintiff had not articulated any other potential claim that might lead the court to conclude there was some other serious question to be tried. While the court acknowledged the wishes of the plaintiff's parents concerning the property, it was unable to conclude that the plaintiff had shown either an arguable proprietary interest or a basis for the grant of injunctive relief. The court dismissed the application and discharged the interim extension of the caveat.
The court further considered the question of costs. The defendants sought an order that the plaintiff pay their costs of and relating to the proceedings. The plaintiff sought an order that there be no order as to costs. The court held that the general rule is that the successful party recovers its costs, but what constitutes 'success' is to be determined by the reality of the circumstances involved in the case. The court found that the plaintiff was not successful in their application and ordered that the plaintiff pay the defendants' costs of and relating to the proceedings to be taxed if not agreed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The balance of convenience is a factor that must be considered where there is an application to extend a caveat. Nevertheless, interlocutory removal of a caveat is unusual where an arguable case as to the existence of a caveatable interest has been demonstrated.[45][45] Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42, 50; Bashford v Bashford [2008] WASC 138 [50]. For the reasons I have outlined, I do not consider that an arguable case has been shown as to the existence of a caveatable interest. It is accordingly unnecessary to consider whether the balance of convenience favours the plaintiff. As Beech J observed in Bashford v Bashford,[46] the Court has power to impose an injunction maintaining the status quo between the parties even if it declines to extend a caveat.[47][46] Bashford v Bashford [2008] WASC 138 [52].[47] Lydon v Ryding [2002] WASC 308 [22]; Lee v Mavaddat [2007] WASC 18 [37]; Powell v In De Braekt [2006] WASC 264 [10]. That said, the plaintiff has not articulated any other potential claim, not involving an asserted proprietary interest, such as might lead the Court to conclude there is some other serious question to be tried. I am mindful of what the wishes of the plaintiff's parents appear to have been concerning the plaintiff and the Property, at least as at November 2012 when their wills were executed. However, for the above reasons I am unable to conclude that the plaintiff has shown either an arguable proprietary interest in the Property or a basis for the grant of injunctive relief. Accordingly, I dismiss the application and order that the interim extension of the caveat granted on 21 March 2024 (as subsequently further extended) be discharged. I will hear the parties as to the question of costs. On 17 May 2024 the Court handed down its reasons in Pitt v Wilkins [2024] WASC 185. As appears from those reasons, the plaintiff's application to extend a caveat, pursuant to s 138C of the Transfer of Land Act 1893 (WA), was dismissed, and an interim extension was discharged. Following the handing down of those reasons, the plaintiff and first defendant were requested to provide either an agreed minute or competing minutes with brief submissions regarding costs. The plaintiff and first defendant were unable to agree costs. Accordingly, the parties, by their solicitors, filed competing minutes with submissions. The first defendant relevantly seeks an order that the plaintiff pay his costs of and relating to the proceedings to be taxed if not agreed. The plaintiff seeks an order that there be no order as to costs. It is trite that the general rule, when the Court exercises its discretion under s 37 of the Supreme Court Act 1935 (WA) and O 66 r 1 of the Rules of the Supreme 1971 (WA), is that the successful party recovers its costs. What constitutes 'success' in proceedings is to be determined by the reality of the circumstances involved in the case.[48][48] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72; Strzelecki Holdings Pty Ltd v Jorgensen [2019] 54 WAR 388; [2019] WASCA 96 [50].