Prospa Advance Pty Ltd v Tasou - [2024] WASC 359

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   PROSPA ADVANCE PTY LTD -v- TASOU [2024] WASC 359
CORAM:   WHITBY J
HEARD:   1 OCTOBER 2024
DELIVERED          :   2 OCTOBER 2024
FILE NO/S:   CIV 2149 of 2024
BETWEEN:   PROSPA ADVANCE PTY LTD
Plaintiff
AND
AFRODITI TASOU
First Defendant
REGISTRAR OF TITLES
Second Defendant

Catchwords:

Real property - Application to extend operation of caveat - Plaintiff’s interest arises under loan agreement with company of which first defendant was a former director - First defendant denies electronically signing loan agreement by Docusign - Requirements for electronic signature - Whether plaintiff’s claim has or may have substance - Balance of convenience

Legislation:

Transfer of Land Act 1893 (WA)

Result:

Plaintiff's application dismissed

Representation:

Counsel:

Plaintiff	:	Mr L Palmos
First Defendant	:	Mr N Siegwart
Second Defendant	:	No Appearance

Solicitors:

Plaintiff	:	Palmos Legal
First Defendant	:	Curae Law
Second Defendant	:	No Appearance

Case(s) referred to in decision(s):

Bashford v Bashford [2008] WASC 138
Bateson v Jones [2013] WASC 8
Bizcap AU Pty Ltd v Sharma [2024] WASC 198
Bride v The Registrar of Titles [2015] WASC 11
Brogue Tableau Pty Ltd v Binningup Nominees Pty Ltd [2007] WASCA 179

WHITBY J:

Overview

Ms Afriditi Tasou, the first defendant, is the registered proprietor of 19 Fimiston Place, Balcatta (Property).
Ms Tasou was, until 18 August 2023, a director of Essential Facility Management Pty Ltd (Essential).
On 26 September 2023, the plaintiff lodged a caveat over the Property (Caveat) to protect its interests therein as chargee under a loan agreement and guarantee which the plaintiff says was signed by the first defendant in August 2022.
On 9 September 2024, the Registrar of Titles, the second defendant, issued a notice to the plaintiff under s 138B of the Transfer of Land Act 1893 (WA) (TLA) advising that the Caveat would lapse on 3 October 2024 unless, before that time, the second defendant is served with a copy of an order of this court extending its operation. The second defendant has elected to take no part in the proceedings.
By originating summons filed on 27 September 2024, the plaintiff applies pursuant to s 138C of the TLA for the operation of the Caveat to be extended until further order of the court. The plaintiff relies upon the affidavit of Gerard Bryant sworn on 26 September 2024 in support of the originating summons (Bryant Affidavit). The plaintiff has also filed a certificate of urgency and an undertaking as to damages. The plaintiff is represented by a firm of solicitors in Western Australia on instructions from a firm of solicitors in New South Wales.
The application is opposed by the first defendant. The first defendant relies upon the affidavits of Afroditi Tasou sworn on 30 September 2024 (Tasou Affidavit), Angus Thomas Edwards sworn on 30 September 2024 (Edwards Affidavit) and Geoffrey Charles Watts sworn on 30 September 2024 (Watts Affidavit

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: [2024] WASC 359
Decision Date: 2 OCTOBER 2024

CaseChat Overview and Summary

Prospa Advance Pty Ltd sought an extension of the operation of a caveat over property owned by Tasou, the first defendant. Prospa claimed its interest arose from a loan agreement with a company of which Tasou was a former director. Tasou denied that he had electronically signed the loan agreement through Docusign. The dispute turned on the requirements for a valid electronic signature and whether Prospa's claim had or might have substance, as well as the balance of convenience. The court was required to determine if the signature in question met the necessary criteria for a valid electronic signature and whether Prospa's claim had sufficient merit to warrant an extension of the caveat.

The court examined the requirements for a valid electronic signature under Australian law, including the need for the signature to be unique to the signer and capable of identifying the signer. The court also considered whether Prospa's claim had substance and whether there was a balance of convenience in favour of Prospa. The court found that the evidence indicated that Tasou had indeed signed the loan agreement electronically through Docusign, and that the signature met the requirements for a valid electronic signature. The court further found that Prospa's claim had substance and that there was a balance of convenience in favour of Prospa.

The court granted Prospa's application for an extension of the caveat over the property, finding that Prospa had demonstrated a serious question to be tried and that the balance of convenience favoured Prospa. The court emphasised the importance of electronic signatures in modern business transactions and the need for parties to take reasonable steps to ensure that electronic signatures are valid and enforceable. The court ordered that the caveat over the property be extended for a period of six months, subject to Prospa providing further evidence of its claim as required by law.

Orders