RAFFAE -v- RAJA [2011] WASC 182

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WASC 182
Published:	02/08/2011
Case No:	CIV:1756/2011	Heard:	25 JULY 2011
Coram:	EM HEENAN J	Delivered:	25/07/11
No of pages:	9	Judgment Part:	1 of 1
Result:	Operation of caveat extended until further order Liberty to apply
Category:	B
PDF Version

Parties:	DAYANG RAIHAM PANGRIAN HAJI AHMED RAFFAE FAYYAZ AHMAD RAJA THE REGISTRAR OF TITLES
Catchwords:	Caveat Application to extend Associated action seeking specific performance for conditional contract for sale of subject land Defence that contract is illegal and unenforceable because of contravention of Town Planning and Development Act 1928 Issues give rise to arguable claims Dispute fit for resolution in pending action
Legislation:	Town Planning and Development Act 1928 (WA) Transfer of Land Act 1893 (WA)
Case References:	Agaiby v Pantham Nominees Pty Ltd (1985) 55 LGR 405 Braham v Walker (1961) 104 CLR 336 Custom Credit v Ravi Nominees Pty Ltd (1992) 8 WAR 42 Landall Construction & Development Company Pty Ltd v Bogaers [1980] WAR 33 Walker v Clough Property Claremont Pty Ltd [2010] WASCA 232

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : RAFFAE -v- RAJA [2011] WASC 182 CORAM : EM HEENAN J HEARD : 25 JULY 2011 DELIVERED : 25 JULY 2011 PUBLISHED : 2 AUGUST 2011 FILE NO/S : CIV 1756 of 2011 BETWEEN : DAYANG RAIHAM PANGRIAN HAJI AHMED RAFFAE

Plaintiff

AND

FAYYAZ AHMAD RAJA

First Defendant

THE REGISTRAR OF TITLES

Second Defendant

Catchwords:

Caveat - Application to extend - Associated action seeking specific performance for conditional contract for sale of subject land - Defence that contract is illegal and unenforceable because of contravention of Town Planning and Development Act 1928 - Issues give rise to arguable claims - Dispute fit for resolution in pending action

(Page 2)

Legislation:

Town Planning and Development Act 1928 (WA)

Transfer of Land Act 1893 (WA)

Result:

Operation of caveat extended until further order

Liberty to apply

Category: B

Representation:

Counsel:

Plaintiff : Mr S K Shepherd

First Defendant : Mr A M Houghton

Second Defendant : No appearance

Solicitors:

Plaintiff : Tottle Partners

First Defendant : Arns & Associates

Second Defendant : No appearance

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

Agaiby v Pantham Nominees Pty Ltd (1985) 55 LGR 405
Braham v Walker (1961) 104 CLR 336
Custom Credit v Ravi Nominees Pty Ltd (1992) 8 WAR 42
Landall Construction & Development Company Pty Ltd v Bogaers [1980] WAR 33
Walker v Clough Property Claremont Pty Ltd [2010] WASCA 232

(Page 3)

1 EM HEENAN J: The application before the court is by an originating summons and an associated chamber summons, each issued by the plaintiff on 4 May 2011, seeking an order under the Transfer of Land Act 1893 (WA) that the operation of caveat number I861440, registered by the plaintiff against the land the subject of certificate of title vol 2574 folio 797 be extended until further order, and for such further orders as the…

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.

Continue reading Raffae v Raja

Details

AGLC: Raffae v Raja [2011] WASC 182
Case: [2011] WASC 182
Decision Date: 2 AUGUST 2011

CaseChat Overview and Summary

The case of Raffae versus Raja involved a dispute over the sale of land. The plaintiff, Raffae, had lodged a caveat against the defendant's, Raja, title to the property. Raja sought to have the caveat removed and to have the court order specific performance of a conditional contract for the sale of the land. The central legal issues the court had to decide were whether the caveat could be extended and if the contract for the sale of the land was illegal and unenforceable.

The court considered whether the issues raised in the application to extend the caveat and the defence of illegality in the contract were arguable. It found that the defence of illegality was a matter to be determined in the associated action, rather than in the caveat proceedings. The court held that the questions raised in the application were arguable and that the dispute was fit for resolution in the pending action. As such, the court granted the application to extend the caveat and gave liberty to apply for further orders.

The court's decision was based on the principle that a caveator must have a real, bona fide and serious question to be determined. The court found that the issues raised in the application were arguable and that the defence of illegality was a matter to be determined in the associated action. The court also considered the balance of convenience and whether it was appropriate to resolve the dispute in the pending action. The court found that the dispute was fit for resolution in the associated action and that the caveat should be extended to allow the parties to litigate the matter fully.

The court ordered that the operation of the caveat be extended until further order and gave liberty to apply for further orders. The court also noted that the decision was without prejudice to any application for an extension of the caveat that might be made in the associated action.

Orders

Orders of the court

Operation of caveat extended until further order

Liberty to apply

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.