Ross v Cox
[2017] WASC 54
•7 MARCH 2017
ROSS -v- COX [2017] WASC 54
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WASC 54 | |
| Case No: | CIV:2760/2016 | ON THE PAPERS | |
| Coram: | KENNETH MARTIN J | 7/03/17 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | No orders as to costs | ||
| B | |||
| PDF Version |
| Parties: | ANTHONY RICHARD ROSS LAURA MARIE COX |
Catchwords: | Practice and procedure Application to extend caveat Section 138B Transfer of Land Act notice Caveat not extended by order of court Resolution by way of undertaking submitted to court Turns on own facts |
Legislation: | Transfer of Land Act 1893 (WA), s 138B |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
LAURA MARIE COX
Defendant
Catchwords:
Practice and procedure - Application to extend caveat - Section 138B Transfer of Land Act notice - Caveat not extended by order of court - Resolution by way of undertaking submitted to court - Turns on own facts
Legislation:
Transfer of Land Act 1893 (WA), s 138B
Result:
No orders as to costs
Category: B
Representation:
Counsel:
Plaintiff : In person
Defendant : Mr R J French
Solicitors:
Plaintiff : In person
Defendant : Murcia Pestell Hillard
Case(s) referred to in judgment(s):
Nil
1 KENNETH MARTIN J: I have received the parties' written submissions seeking that I resolve on the papers the issue of costs which I reserved after the second appearance of the parties before me on this application by the plaintiff, Mr Ross, seeking to extend two caveats which he had caused to be filed in respect of claimed interests in property against the land of Mr and Mrs Cox at Swanbourne, Western Australia.
2 At all times the plaintiff, Mr Anthony Richard Ross, has represented himself in the pursuit of a debt which he has been effectively seeking security against the Swanbourne property of Mr and Mrs Cox. The fundamental pre-requisite for a valid caveat to be registered against land is to demonstrate that the caveator holds some sort of legal or equitable proprietary interest in land sufficient to sustain the caveat. What is clear is that a simple debt that is owed to a creditor will not provide the creditor, without more, with a proprietary interest in land sufficient to sustain a caveat. Here, plainly, it appears to be the case that Mr or Mrs Cox took steps under s 138B of the Transfer of Land Act 1893 (WA) to have the Registrar of Titles issue a notice to Mr Ross requiring that he take steps in this court in order to show a valid proprietary interest in land - failing which, the two caveats which he had caused to be lodged against the Swanbourne property will have been terminated after the running of time.
3 Mr Ross then commenced this action, CIV 2760 of 2016, which was initially returnable before me on 13 October 2016. At the first return of that application, counsel for Mrs Cox attended and the extension of the caveats was opposed. Nevertheless, at that time there seemed to be dialogue between the parties offering some level of low priority security to Mr Ross and consequently, whilst I did not at that time render any orders extending time for Mr Ross's caveats, I adjourned the matter to the day before the expiry of one of the two caveats in order to allow time for the parties to continue in negotiations.
4 Those negotiations obviously continued but when the matter next came before me on 18 October 2016, the parties had still not reached agreement. The matter was not aided by the fact that Mr Ross acted in person and seemed to have considerable difficulty grappling with the notion of a proprietary interest in land. Nevertheless, the parties were still negotiating concerning the payment of an amount of money into court that would possibly abide Mr Ross's debt claims and consequently, whilst I did not make orders extending Mr Ross's caveat, nevertheless, matters appear to have been concluded on the basis of the foreshadowed submission of an undertaking to the court by Mrs Cox as regards a limited amount of security for Mr Ross.
5 The following day an undertaking in acceptable terms was filed on behalf of Mrs Cox as regards a maximum of $400,000 and her promised endeavours in terms of up to that amount being available. The court received that undertaking but no orders extending Mr Ross's caveats were ever made - chiefly on the basis of the key difficulty of establishing a proprietary interest in land sufficient to arguably sustain a caveat.
6 The only relevant question for me is the issue of costs which were reserved after the second hearing. Although it appeared to me that Mr Ross would struggle to show a caveatable interest in land as regards his claims as creditor against Mr and Mrs Cox, it was also open for him to seek in the alternative injunctive relief as regards the proceeds of the foreshadowed sale of the Coxs' Swanbourne property - after the payment of secured prior creditors. Because of that, it was desirable that the matter be resolved, if possible, and at the time it seemed to me that the foreshadowed undertaking by Mrs Cox was a potentially viable outcome. As things have transpired, however, the intervention of the Australian Tax Office has frustrated the outcome of isolating a fund of money from the sale of the Coxs' Swanbourne property that might be available to benefit Mr Ross's claims.
7 The question then in relation to costs is whether Mr Ross should bear the costs of the appearances before me in October 2016 - which were reserved. In effect, the position is that costs are sought against Mr Ross on the basis, essentially, that his caveats were not extended and that the end outcome, by reference to the undertaking as accepted by the court, is said to have been effectively as good as what he was offered at the outset by the proposals put to him on behalf of Mrs Cox. With respect, however, I do not assess the position to be that clear. In the end, it seemed to me that there was a need to clarify the terms of the undertaking that was offered to the court and this took some time. Mr Ross acting in person did not assist.
8 However, overall, I am not satisfied that this is an occasion upon which it was appropriate that there be an award of any of the costs of the applications before me made against Mr Ross and I decline to order costs against him. His conduct as a self represented litigant in fairly desperate circumstances as an unpaid creditor of some duration is apparent. He may not have acted perfectly or displayed the insights of a lawyer but, in the end, the undertaking offered to the court resolved that dispute. In the circumstances, a costs order is not appropriate in the exercise of my discretion.
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