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,…

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: [2025] WASC 475
Decision Date: 10 NOVEMBER 2025

CaseChat Overview and Summary

Prospa Advance Pty Ltd brought an application against Mr and Mrs Athanasiou in the Supreme Court of Western Australia, seeking the removal of caveats placed on two properties. The case concerned the validity and necessity of the caveats, and the balance of convenience in maintaining or removing them. The primary issue for the court was whether Prospa had established a serious question to be tried regarding their caveatable interest and whether the balance of convenience favoured the removal of the caveats. The court was required to weigh the evidence of potential prejudice to the Athanasious if the caveats were removed against the likelihood of Prospa’s claims succeeding.

The court considered the established principles regarding the removal of caveats and the interests of the parties involved. It noted that ordinarily, if a plaintiff has demonstrated that their case has substance, the interlocutory removal of a caveat would be unusual, as established in Custom Credit Corporation Limited v Ravi Nominees Pty Ltd. However, the court also recognised that the nature of the interest claimed by the caveator, and the balance of convenience, could alter this approach, as seen in Navarac Pty Ltd v Moondancer Holdings Pty Ltd. The court had to carefully weigh these interests, particularly given the evidence of prejudice to the Athanasious if the caveats were not removed, and the limited utility of extending the caveats given the existing first-ranking mortgages.

In light of the evidence presented, the court found that the Athanasious had shown sufficient prejudice if the caveats were not removed, as they had entered into contracts for the sale of the properties, and the settlement of these contracts would be delayed or prevented. Additionally, the court found that extending the caveats would serve little purpose, as the proceeds from the sale would be insufficient to satisfy Prospa’s claims after the existing mortgages were paid. Therefore, the court concluded that the balance of convenience favoured the removal of the caveats.

The final orders of the court were that the caveats on both properties be removed, and that Prospa pay the Athanasious’ costs of the application.

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

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.