Prospa Advance Pty Ltd v Athanasiou - [2025] WASC 475

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   PROSPA ADVANCE PTY LTD -v- ATHANASIOU [2025] WASC 475
CORAM:   SEAWARD J
HEARD:   27 OCTOBER 2025
DELIVERED          :   27 OCTOBER 2025
PUBLISHED           :   10 NOVEMBER 2025
FILE NO/S:   CIV 2188 of 2025
BETWEEN:   PROSPA ADVANCE PTY LTD
Plaintiff
AND
MARY ATHANASIOU
First Defendant
CHRISTOS ATHANASIOU
Second Defendant

Catchwords:

Real property - Caveats - Application to extend operation of caveats pursuant to s 138C of the Transfer of Land Act 1893 (WA) - Whether plaintiff has established a serious issue to be tried as to caveatable interest - Balance of convenience - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA)
Transfer of Land Act 1893 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	Mr B J Tomasi
First Defendant	:	Mr C K Ko
Second Defendant	:	Mr C K Ko

Solicitors:

Plaintiff	:	Bridges Lawyers
First Defendant	:	Trinix Lawyers
Second Defendant	:	Trinix Lawyers

Cases referred to in decision:

Bashford v Bashford [2008] WASC 138
Bizcap AU Pty Ltd v Nguyen [2024] WASC 295
Bizcap AU Pty Ltd v Sharma [2024] WASC 198
Bride v The Registrar of Titles [2015] WASC 11
Custom Credit Corporation Limited v Ravi Nominees Pty Ltd (1992) 8 WAR 42
Leros Pty Ltd v Terara Pty Ltd [1992] HCA 22; (1992) 174 CLR 407
Navarac Pty Ltd v Moondancer Holdings Pty Ltd [2009] WASCA 95; (2009) 40 WAR 150
Pezzano Enterprises Pty Ltd v Mias [2023] WASC 168

SEAWARD J:

(This judgment was delivered extemporaneously and has been edited from the transcript to correct matters of grammar and formatting, and to add headings and full citations).

Introduction

By way of the Originating Summons filed on 17 October 2025, the plaintiff, Prospa Advance Pty Ltd, applies for orders extending the operation of the following two caveats pursuant to s 138C of the Transfer of Land Act 1893 (WA) (TLA):
(1)caveat P724190: over Mary Athanasiou's interest only in Lot 34 on Strata Plan 50808, being the whole of the land described in Certificate of Title Volume 2741 Folio 33 commonly known as [Redacted], 155 Adelaide Terrace, East Perth WA 6004 (East Perth Property); and
(2)caveat P724191: over Lot 2 on Strata Plan 70819, being the whole of the land described in Certificate of Title Volume 2864 Folio 138 commonly known as [Redacted] Hemsey Street, Balga WA 6061 (Balga Property).
The first defendant, Mary Athanasiou, is the sole registered proprietor of the Balga Property. Ms Athanasiou is a joint tenant of the East Perth Property, together with the second defendant, her husband Christos Athanasiou. Both appear by counsel and oppose the extension of the caveats.
The caveats were lodged by Prospa on 27 September 2023 to protect its claimed interests in the properties as chargee under a loan agreement and guarantee which Prospa says was signed by Mary Athanasiou as guarantor on 18 August 2022.
The third defendant, the Registrar of Titles, has indicated by way of letter that he does not intend to participate in the application and will abide by the orders of the court, save as to costs.
The matter came before me on 27 October 2025 on an urgent and inter parte basis.
There is no dispute from Mr and Mrs Athanasiou that Prospa has a caveatable interest in the two properties. Rather, Mr and Mrs Athanasiou submit that the balance of convenience does not favour the extension of the caveats.

Evidence

Prospa relies on the affidavit of Gerard Bryant sworn 17 October 2025 and the affidavit of Katie Griffiths, sworn 24 October 2025. Prospa has also filed an undertaking as to damages in the usual form and counsel for Prospa was instructed to offer, on behalf of his client, a further undertaking that:
On the basis that there will not be surplus funds available to meet its debts at the settlement of the sale of each of East Perth Property and the Balga Property, Prospa undertakes to remove the two caveats at settlement.
Mr and Mrs Athanasiou rely on the affidavit of Mrs Athanasiou sworn 24 October 2025 and the affidavit of Mitchell Collins sworn 27 October 2025.

Factual background

In light of the acceptance by Mr and Mrs Athanasiou that Prospa has a caveatable interest in the properties, it is only necessary to provide a brief summary of the facts underpinning Prospa's claim.
In short, Prospa's interest arises as a chargee of a charge pursuant to a loan agreement entered into on 18 August 2022, between Prospa and a company Essential Facility Management Pty Ltd, Mrs Athanasiou and Ms Afroditi Tasou (Agreement).
A copy of the Agreement is attached to Mr Bryant's affidavit. In accordance with the Agreement, Prospa agreed to loan Essential Facility Management the sum of $257,500, and Essential Facility Management was to repay the loan amount by making 104 weekly payments.
The Agreement also contains a guarantee and indemnity (cl 12.2 and cl 12.3), whereby Mrs Athanasiou and Ms Tasou guaranteed to Prospa the performance of the obligations of Essential Facility Management under the Agreement and indemnified Prospa against any loss it may suffer under the Agreement and any default by Essential Facility Management in the performance of its obligations under the Agreement.
Relevantly for present purposes, the Agreement also contains the following clauses:
(1)Clause 2.2 which provides that if the amount loaned to and paid to Essential Facility Management was over $150,000.00, or an Event of Default occurs under the Agreement, then Mrs Athanasiou (as a Transaction Party) will grant security over the 'Secured Property' to secure the amount owing by Essential Facility Management under the Agreement.
(2)Clause 2.3 which provides that in the circumstances where cl 2.2 applies, Mrs Athanasiou (as a Transaction Party) charges the Secured Property in favour of Prospa and consents to any registration in connection with the Secured Property, including the registration of a caveat.
Secured property is defined broadly so as to include all real property of Mrs Athanasiou, and an event of default includes non‑payment of an instalment, which goes unremedied for five business days following notification of the default. Prospa then dispersed the funds under the Agreement, and Essential Facility Management initially paid the weekly instalments between 26 August 2022 and 23 June 2023, but then ceased. Demands were issued by Prospa to Essential Facility Management, Mrs Athanasiou and Ms Tasou, but the amounts demanded were not paid.
As a consequence, on 27 September 2023, Prospa lodged the two caveats. Both of the caveats are absolute caveats and the interest claimed is as a chargee in accordance with a charge as contained in the Agreement.
The affidavit evidence before me also refers to some proceedings in the District Court. It is not necessary to go into detail about those, however, it is sufficient to observe that, on 24 January 2025, default judgment was entered in the District Court against - relevantly, for today's purposes - Mrs Athanasiou.
Those District Court proceedings remain ongoing in relation to two other defendants.
Notices were issued by Landgate on 2 October 2025, and 3 October 2025 to Prospa, stating that the caveats will lapse at midnight on 28 October 2025 in relation to the East Perth property, and 29 October 2025 in relation to the Balga property, unless extended by order of this court.
In her affidavit, Mrs Athanasiou deposes that she entered into a contract for a sale of the Balga property on 14 August 2025, in the amount of $651,000, following an advertising campaign by her real estate agent. A copy of the contract is attached to her affidavit. Mrs Athanasiou deposes that she did not know the purchaser prior to entering into the contract. Mrs Athanasiou deposes that she is informed by her solicitors that settlement of the Balga property is due to take place on 7 November 2025. Mrs Athanasiou has also attached a variation of the contract which evidences this settlement date.
In relation to the East Perth property, Mrs Athanasiou deposes that she entered into a contract for the sale of this property on 4 September 2025, in the amount of $690,000, following an advertising campaign by her real estate agent. A copy of the contract is attached to Mrs Athanasiou's affidavit. Mrs Athanasiou deposes that she did not know the purchaser prior to entering into the contract.
Mrs Athanasiou deposes that she is informed by her solicitors that settlement of the East Perth property was due to take place on 20 October 2025 but has been delayed. Mrs Athanasiou deposes this is because of Prospa's refusal to withdraw the caveat. That is not accepted by Prospa. Mrs Athanasiou has also attached a variation of the contract which evidences this settlement date.
Other evidence before the court indicates that that settlement date is now proposed to take place tomorrow, on 28 October 2025. Mrs Athanasiou has also attached correspondence concerning the settlement of the East Perth property, which indicates that the purchaser has indicated that they may issue a default notice in relation to the contract, and also that, as at 20 October 2025, the purchaser is ready, willing and able to complete the contract, and that penalty interest will be deducted from the purchase price at a daily rate of $168.90 from 20 October 2025.
Mrs Athanasiou also deposes as to the amount of equity in the properties. Mrs Athanasiou deposes that both properties have a first ranking mortgage registered by the Commonwealth Bank of Australia on 11 February 2022. This can be seen from the respective certificates of title. Further, in addition to Prospa's caveats, each property also has a caveat registered by Community and Corporate Lifesavers Pty Ltd on 14 May 2024 - that is, registered after Prospa's caveat.
Mrs Athanasiou has attached correspondence from the solicitors for the Commonwealth Bank which states that as at 6 October 2025, the amount owing by Mr and Mrs Athanasiou to the Commonwealth Bank is $1,447,193.91.
The mortgage is stated to be secured as against all properties. Further, the correspondence states that the Commonwealth Bank would only agree to provide discharges of the mortgages at settlement for the properties where full net proceeds are received to the extent of the amount owing.
Mrs Athanasiou deposes that she intended to sell the Balga Property and the East Perth Property to pay off her outstanding debts.
Mrs Athanasiou also deposes that she is informed by her solicitors and verily believes that the proceeds from the sale of the Balga Property after the deduction of the real estate agent's commission and settlement costs will be in the amount of approximately $620,000. For the East Perth Property, it will be in the amount of approximately $660,000. In those circumstances, Mrs Athanasiou deposes that in circumstances where the Commonwealth Bank intends to collect full sale proceeds, there will be no surplus funds remaining which Prospa may receive.
Mrs Athanasiou deposes that she is also the owner of two other properties, over which Prospa has registered caveats. The certificates of title for these properties are attached to her affidavit, and also Ms Griffiths' affidavit.
One of the properties is located in North Perth, and Mrs Athanasiou has a 21/100 interest in that property. No mortgage is registered against this property. Both Prospa and Community & Corporate Lifesavers Pty Ltd have registered caveats against Mrs Athanasiou's interest only.
The other property is located in Mirrabooka. Mrs Athanasiou is the sole registered proprietor. There is a first ranking mortgage registered by the Commonwealth Bank on 11 February 2022, as well as caveats lodged by Prospa and Community & Corporate Lifesavers Pty Ltd.
Mrs Athanasiou deposes that she and her husband will suffer considerable prejudice if the settlements of the Balga Property and the East Perth Property cannot proceed, in the form of penalty interest or damages and additional amounts to be paid to the Commonwealth Bank.
Mr Collins deposes that lapsing notices were issued by Landgate to Community & Corporate Lifesavers Pty Ltd in relation to each of its two caveats, and they were due to lapse at midnight on 23 October 2025 (East Perth Property) and 24 October 2025 (Balga Property). Neither party is aware of any ex parte extension orders being granted, however it does appear that a search by Prospa of the title today, still shows each of these caveats on the titles. Whether that is due to an administrative matter, or some other reason, is unknown.

Legal principles

Extension of caveat

Under s 137 of the TLA, a person claiming any estate or interest in land under the operation of the TLA may lodge a caveat with the Registrar. The purpose of a caveat against dealings is to operate as an injunction to the Registrar to prevent registration of dealings forbidden by the caveat until notice is given to the caveator so that he or she has an opportunity to oppose such registration.[1]
[1] Leros Pty Ltd v Terara Pty Ltd [1992] HCA 22; (1992) 174 CLR 407, 419.
Section 138C (2) of the TLA provides for the Supreme Court's powers when a caveator applies to the Supreme Court for an order extending the operation of a caveat. The terms of s 138C of the TLA are as follows:
(1) A caveator who is served with a notice under section 138B(1) may apply to the Supreme Court, in accordance with rules of the court, for an order extending the operation of the caveat.
(2)On the hearing of an application under subsection (1), the Supreme Court -
(a) if satisfied that the caveator's claim has or may have substance -
(i) may make an order extending the operation of the caveat for such period as is specified in the order; or
(ii) may make an order extending the operation of the caveat until the further order of the court; or
(iii) may make such other orders as it thinks fit concerning the caveat or the land in respect of which the caveat was lodged;
and
(b) if not satisfied that the caveator's claim has or may have substance, shall dismiss the application; and
(c) may make such ancillary orders in relation to the application as it thinks fit.
(3) An interim order under this section may be made ex parte unless the court orders otherwise.
(4) The applicant shall ensure that the Registrar is served with a copy of each order made by the court on an application under subsection (1).
The principles applicable to an application to extend a caveat are well established and were summarised in Bashford v Bashford,[2] and in Bride v Registrar of Titles[3] and have been applied in numerous decisions of this court. There is no need to restate these principles in full here.
[2] Bashford v Bashford [2008] WASC 138 [42] - [50].
[3] Bride v The Registrar of Titles [2015] WASC 11 [12] ‑ [16].
Essentially, there are two questions for determination:
(a)First, has the caveator demonstrated that their claim has or may have substance or, as it is sometimes put, has the caveator established that there is a serious question to be tried in respect of the estate or interest in the land claimed?
(b)Second, does the balance of convenience favour the extension of the operation of the caveat?
The two questions are interrelated. The court must balance the injustice that might be suffered by the proprietor if the caveat were to remain against the injustice that might be suffered by the caveator if the caveat is removed.

Whether the plaintiff's claim to an interest in the land has or may have substance

There is no dispute that a charge over land is an estate or interest in land within the meaning of s 137 of the TLA which is capable of protection by way of caveat, and there is no dispute by Mr and Mrs Athanasiou that Prospa has a caveatable interest in relation to the properties.

Balance of convenience

This case concerns the balance of convenience.
Prospa submits that there is no dispute that the caveats should be removed to enable the settlements to take place, but the question is one of timing. Prospa also submits that there is no dispute that there is a first ranking mortgage to the bank which will need to be paid before any funds could flow to it. Prospa accepts that if settlement of the East Perth Property occurs tomorrow, and the settlement of the Balga Property occurs on 7 November 2025, and there is nothing intervening, that there will not be any surplus funds after the bank is paid.
As Prospa submits, the question is one of timing.
Prospa submits that the defendants had not previously provided clear and timely information as to the proposed settlement dates and the amounts owing to the Bank. Prospa relies on the various correspondence exchanges attached to the affidavits that were read. Prospa submits that the lapsing notices were not required, and it was prepared to attend settlement of the properties and if the position was that there were no surplus funds, then it would remove the caveats at settlement.
However, if there were surplus funds, then it would be able to protect its interest by not removing the caveat unless and until appropriate arrangements were made in that regard. Prospa submits that if the caveats lapse, and settlement does not occur on the dates identified, then it will be left with no protection of its underlying interest.
The defendants submit that this is simple case of the balance of convenience favouring the lapsing of the caveats. The defendants submit that the evidence demonstrates that there will be no surplus funds in relation to the properties and therefore no utility in extending the caveats. Further, Prospa has caveats over two other properties owned by Mrs Athanasiou which protect its security interest. The defendants submit that this case is similar to the facts underpinning the decision of this court in Bizcap AU Pty Ltd v Nguyen.[4]
[4] Bizcap AU Pty Ltd v Nguyen [2024] WASC 295.
The defendants also submit that they are not aware of whether it is possible for the caveats to be removed at the settlement in the manner proposed by Prospa, including using the PEXA system, or whether there would be a delay on Landgate's part in processing any such removal, and whether settlement would be held up in this regard, including whether the bank would proceed in those circumstances.
Counsel for Prospa indicated that he was instructed that it was possible to proceed in the manner proposed.
There was no evidence before me of whether this is possible.
Having weighed the various factors, I am satisfied that the balance of convenience does not favour an extension of both caveats for the following reasons.
First, the strength of Prospa's case is a relevant factor. In this case, there is no dispute that Prospa has a caveatable interest and so I consider Prospa's case to be strong.
Prospa submits that in circumstances where a plaintiff has demonstrated that their case has or may have substance, then ordinarily interlocutory removal of a caveat will be unusual. Prospa relies on the decision of Custom Credit Corporation Limited v Ravi Nominees Pty Ltd[5] where Owen J (Malcolm CJ and Walsh J agreeing) held that:
The purpose of the caveat is to restrain the registered proprietor from dealing with the land in a way which will defeat or derogate from the incidents attaching to that proprietary interest until the respective rights of the parties have been honoured (if there is agreement) or determined (if there is disagreement). In many cases, removal of the caveat will have the effect of destroying for all practical purposes, the benefit of the proprietary interest.
[5] Custom Credit Corporation Limited v Ravi Nominees Pty Ltd (1992) 8 WAR 42, 50.
However, it is also relevant to have regard to the decision of Navarac Pty Ltd v Moondancer Holdings Pty Ltd,[6] where Pullin JA (with whom Miller and Newnes JA agreed) drew a distinction between a situation where the caveator claims a fee simple or leasehold interest and the situation where a caveator claims a security interest. Pullin JA held that where the interest claimed by the caveator is a security interest, or an interest in competition with another claimant against the registered proprietor, the position is not necessarily the same as set out in Custom Credit, and the balance of convenience issues may prove to be decisive.[7] See also the approach adopted in Bizcap AU Pty Ltd v Sharma;[8] Pezzano Enterprises Pty Ltd v Mias.[9]
[6] Navarac Pty Ltd v Moondancer Holdings Pty Ltd [2009] WASCA 95; (2009) 40 WAR 150.
[7] Navarac Pty Ltd v Moondancer Holdings Pty Ltd [2009] WASCA 95; (2009) 40 WAR 150 [22].
[8] Bizcap AU Pty Ltd v Sharma [2024] WASC 198.
[9] Pezzano Enterprises Pty Ltd v Mias [2023] WASC 168.

Therefore, in the present case, my view is that the interests relevant to the balance of convenience should be weighed carefully rather than approaching the matter from an assumption that the removal of the caveats would be unusual.
Secondly, Mr and Mrs Athanasiou have provided evidence of prejudice in the event that the caveats are extended.
Mrs Athanasiou has entered into contracts for the sale of the two properties and has deposed as to the settlement dates. If the caveats remain in place, then the settlement of these contracts may be delayed or prevented. The evidence before the court in relation to the East Perth Property indicates that the settlement date has passed, penalty interest is accruing. The settlement date for the Balga Property is only short time in the future, being 7 November 2025.
Thirdly, there is evidence before me that there is little utility in extending the caveats. In relation to each property, there is a first ranking mortgage and the amounts owing to the bank will need to be paid from the settlement proceeds. The evidence is that after this is done, there will be no surplus from the sale to be paid to Prospa.
Prospa submits that it has never intended to prevent settlement of the properties, and if, at settlement, there is no surplus funds available for Prospa, then it will remove the caveats, and has given an undertaking to this effect through counsel today.
However, Propsa submits that should not occur until settlement when the precise details of the surplus funds are confirmed and Prospa is therefore able to protect its interest.
However, the evidence before the court in the form of the letter from the bank's solicitors is that the amount owing as at 6 October 2025 exceeds the combined sale prices for the properties by around $100,000. This is before the estimated settlement costs are deducted from the purchase prices. Therefore, this is not a case where there is likely to be any surplus funds.
The real risk would then seem to be the risk that settlement does not proceed on one or both of the properties on the proposed dates, and Prospa is left without a caveat protecting its interests.
In all the circumstances, absent any evidence that settlement will not take place, I consider the risk of prejudice to Prospa in this regard to be uncertain. I also consider the risk can be managed by the making of an order granting Prospa leave pursuant to s 138D of the TLA to lodge a caveat in identical terms (save for one matter which I will return to) if settlement does not occur within five business days of 28 October 2025 for the East Perth Property and 7 November 2025 for the Balga Property.
Fourthly, Prospa has caveats registered over two other properties owned by Mrs Athanasiou. I do not have any information before me as to the value of those properties, or the amounts owing on the Mirrabooka property. However, it is not a case that Prospa has no other security in relation to the amounts owing.
Fifthly, I do not have any evidence before me as to whether settlement can proceed in the manner proposed by Prospa.
In reaching my conclusion, I have not overlooked the fact that Prospa has provided an undertaking as to damages in the usual form and has offered the further undertaking through counsel this morning. However, I do not consider this factor, in light of the other factors I have referred to, is sufficient to shift the balance of convenience.
For those reasons, I will not extend the operation of the caveats.

Orders

After delivering my oral reasons I heard from counsel as to the appropriate orders and as to costs. I then made the following orders:
1.Pursuant to Order 18 Rule 6(2)(b) of the Rules of the Supreme Court 1971, the plaintiff has leave to join Registrar of Titles as the third defendant.
2.The plaintiff has leave to amend the originating summons in the form of the minute of amended originating summons attached to the plaintiff's minute of proposed orders dated 24 October 2025.
3.The plaintiff's originating summons dated 17 October 2025 be dismissed.
4.The plaintiff has leave, pursuant to s 138D of the Transfer of Land Act 1893 (WA), to lodge fresh caveats in the same terms as:
(a)caveat P724190, being the caveat against the title of Lot 34 on Strata Plan 50808, being the whole of the land described in Certificate of Title Volume 2741 Folio 33 commonly known as [redacted] (East Perth Property) if settlement does not occur within five business days of 28 October 2025; and
(b)caveat P724191, being the caveat against title of Lot 2 on Strata Plan 70819, being the whole of the land described in Certificate of Title Volume 2864 Folio 138 commonly known as [redacted] (Balga Property) if settlement does not occur within five business days of 7 November 2025
save for deleting the word 'absolute' and substituting the words 'unless subject to the claim of caveator' for each caveat.
5.There be liberty to apply.
6.There be no orders as to costs.

Post script

After hearing from both parties, I adjourned the proceedings pro tem to consider my decision, before returning to court and delivering my oral reasons.
After I had delivered by oral reasons for my decision, but prior to pronouncing my orders, counsel for Prospa indicated that he had sought instructions during the adjournment and was instructed that it was possible for the caveats to be removed at settlement under the PEXA system. Counsel for Mr and Mrs Athanasiou indicated that he remained unaware of whether that was possible.
I indicated to counsel that I remained of the view as expressed in my oral reasons, and observed that there was no evidence before me as to whether removal of the caveats at settlement was possible, and noted that this was not a matter which was agreed between the parties.
I also refused Prospa's application to adjourn to file further evidence on this issue, owing to imminent settlement dates and in light of the various other matters relevant to the balance of convenience.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MA
Associate to the Hon Justice Seaward
10 NOVEMBER 2025