JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: PREM -v- SURMA [2024] WASC 308
CORAM: STRK J
HEARD: 31 MAY 2024
PUBLISHED : 26 AUGUST 2024
FILE NO/S: CIV 1610 of 2024
MATTER: IN THE MATTER OF THE TRANSFER OF LAND ACT 1893 (WA) s 138
BETWEEN: FELICHA CRYSTLE PREM
Plaintiff
AND
YVONNE CAMILLA SURMA
First Defendant
THE REGISTRAR OF TITLES
Second Defendant
Catchwords:
Real property - Caveat - Application to extend - Serious question to be tried - Balance of convenience - Sale of land - Turns on own facts
Legislation:
Transfer of Land Act 1893 (WA) s 138
Result:
Application granted
Category: B
Representation:
Counsel:
| Plaintiff | : | RJ Squires |
| First Defendant | : | CE D'Angelo |
| Second Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Vibe Legal |
| First Defendant | : | Main Legal Studio |
| Second Defendant | : | No appearance |
Cases referred to in decision:
Bashford v Bashford [2008] WASC 138
Brogue Tableau Pty Ltd v Binningup Nominees Pty Ltd [2007] WASCA 179; (2007) 35 WAR 27
Bryson v Bryant (1992) 29 NSWLR 188
Cressy v Johnson [2009] VSC 52
Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42
Depsun Pty Ltd v Tahore Holdings Pty Ltd (1990) ANZ Conv Rep 334
Elliott v Blanshard (1970) 17 FLR 7
Engwirda v Engwirda [2000] QCA 61
Gangemi v Gangemi [2009] WASC 195
Green v Green (1989) 17 NSWLR 343
Hibberson v George (1989) 12 Fam LR 725
J & H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546
Kalx Capital Securities Pty Ltd v Richardson 1 Pty Ltd [No 2] [2021] WASC 302
Kerabee Park Pty Ltd v Daley (1978) 2 NSWLR 222
KWS Capital Pty Ltd v Love [2013] WASC 294
Leros Pty Ltd v Terara Pty Ltd [1992] HCA 22; (1992) 174 CLR 407
Lloyd v Tedesco (2002) 25 WAR 360
Magnolia Private Capital Pty Ltd v Floate [2022] WASC 131
Martin v Official Trustee in Bankruptcy [1990] Tas R 65
Midland Brick Company Pty Ltd v Welsh [2006] WASC 122; (2006) 32 WAR 287
Midwarren Estates Pty Ltd v Retek & Stivic [1975] VR 575
Miller v Sutherland (1990) 14 Fam LR 416
Palazzo Homes Pty Ltd v Goh [2010] WASC 407
Percy & Michele Pty Ltd v Gangemi [2010] VSC 530
Porter v McDonald [1984] WAR 271
Queensland Estates Pty Ltd v Co-ownership Land Development Pty Ltd [1969] Qd R 150
Re Sabri; Ex parte Brien v Australia & New Zealand Banking Group Ltd (1996) 137 FLR 165
Re The Victorian Farmers' Loan and Agency Co Ltd (1897) 22 VLR 629
Simmons v Love [2014] WASC 116
Sulinmo Properties Pty Ltd v Malloney (1985) ANZ Conv Rep 25
Veloudos v Young (1981) 56 FLR 182
Table of Contents
Introduction
The evidence
The applicant's evidence
Ms Prem's affidavit sworn 22 May 2024
Mr Shepherd's affidavit sworn 22 May 2024
Mr Shepherd's affidavit sworn 24 May 2024
Mr Shepherd's affidavit sworn 24 May 2024
Mr Shepherd's affidavit…
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- AGLC
- Prem v Surma [2024] WASC 308
- Case
- [2024] WASC 308
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court involved whether Ms Prem could demonstrate a serious question to be tried regarding her claim to an interest in the property, and if so, whether the balance of convenience favoured the retention of the caveat. The court also had to consider whether the caveat could be amended to more accurately reflect Ms Prem's interest, thereby preserving its validity.
The court found that Ms Prem had not established a serious question to be tried regarding her claim for an interest in the property. While the court acknowledged that Ms Prem had presented some evidence, it was not sufficient to raise a serious question to be tried. Furthermore, the balance of convenience did not favour the retention of the caveat, as the removal of the caveat would not unduly prejudice Ms Prem's interests, whereas its retention would significantly inconvenience Mr Surma. Consequently, the court ordered that the caveat be removed, subject to Ms Prem's right to amend it to more accurately reflect her interest in the property.
The court's decision underscored the importance of the principles governing caveats and the need for a caveator to demonstrate a serious question to be tried regarding their claim for an interest in the property. The court also highlighted the importance of the balance of convenience in determining whether to retain a caveat, and the power of the court to amend a caveat as a condition of its retention. The final orders of the court were that the caveat be removed, subject to Ms Prem's right to amend it to more accurately reflect her interest in the property.
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
On such an application, the question for determination is whether or not the caveator can demonstrate they may have an interest in land which is capable of supporting a caveat. By its nature, a caveatable interest must be a proprietary interest in land.[12] This requires the interest to be a proprietary interest that is recognised at law or in equity.[12] Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42, 50. As is noted above, a caveat is a form of statutory injunction which prevents registration of a dealing against land until the caveator has been given a reasonable opportunity to justify the caveat by pursuing such remedies as they may have.[13] The caveator must satisfy the court that, on the evidence presented to the court, their claim for an interest in the property raises a serious question to be tried or that it may have substance.[14] Even if a claim may have substance, the caveat might not be extended having regard to factors including the apparent strength or weakness of the caveator's claim.[15][13] J & H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546, 552, 558; Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (44 ‑ 45); Brogue Tableau Pty Ltd v Binningup Nominees Pty Ltd [2007] WASCA 179; (2007) 35 WAR 27 [68].[14] Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (48 ‑ 50).[15] KWS Capital Pty Ltd v Love [2013] WASC 294 [32] ‑ [36]. A caveatable interest must exist at the time a caveat is lodged. A caveat cannot be lodged to protect a future interest.[16] Further, the caveat must not go beyond the legitimate claim necessary to protect the rights of the caveator.[17] Removal of the caveat will, in many cases, have the effect of destroying the benefit of the proprietary interest claimed in the caveat.[18][16] Martin v Official Trustee in Bankruptcy [1990] Tas R 65, 69; Gangemi v Gangemi [2009] WASC 195 [38] - [45].[17] Midland Brick Company Pty Ltd v Welsh [2006] WASC 122; (2006) 32 WAR 287 [342].[18] Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (50). In the exercise of the court's discretion under s 138 of the Transfer of Land Act, the balance of convenience is a relevant factor. There is no rule of law that once an arguable case for a caveatable interest is established, removal of the caveat will only be ordered if it is shown that the 'circumstances are so unusual' that the caveat should be removed. The discretion is to be exercised having regard to the particular circumstances of the case.[19][19] Magnolia Private Capital Pty Ltd v Floate [2022] WASC 131 [12]; first defendant's submissions par 65. I adopted and applied these principles in determining Ms Prem's application. As to the power to amend a caveat, as was observed by Le Miere J in Palazzo Homes Pty Ltd v Goh [2010] WASC 407 at [7], it is now generally accepted in Australia that the power to make such order as the court considers appropriate, or as to the court seems fit, in dealing with an application to remove a caveat, includes the power to order amendment of the caveat as a condition of its retention.[20] Further, his Honour noted that s 138(2) of the Transfer of Land Act provides that on a registered proprietor summoning a caveator to show cause why a caveat should not be removed, the court may make such order as the court or judge may seem fit. The power to make such order as the court may seem fit includes the power to order that the caveat be amended.[21][20] Le Miere J cited by way of example: Re The Victorian Farmers' Loan and Agency Co Ltd (1897) 22 VLR 629; Queensland Estates Pty Ltd v Co-ownership Land Development Pty Ltd [1969] Qd R 150; Elliott v Blanshard (1970) 17 FLR 7, 11; Midwarren Estates Pty Ltd v Retek & Stivic [1975] VR 575; Kerabee Park Pty Ltd v Daley (1978) 2 NSWLR 222, 229; Veloudos v Young (1981) 56 FLR 182, 186 ‑ 187; Depsun Pty Ltd v Tahore Holdings Pty Ltd (1990) ANZ Conv Rep 334.[21] Palazzo Homes Pty Ltd v Goh [8], citing Porter v McDonald [1984] WAR 271, 275; Sulinmo Properties Pty Ltd v Malloney (1985) ANZ Conv Rep 25.