Rowe v The Roman Catholic Archbishop of Perth - [2021] WASCA 93

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   ROWE -v- THE ROMAN CATHOLIC ARCHBISHOP OF PERTH [2021] WASCA 93
CORAM:   MURPHY JA
MITCHELL JA

HEARD:   21 MAY 2021
DELIVERED          :   21 MAY 2021
PUBLISHED           :   25 MAY 2021
FILE NO/S:   CACV 25 of 2021
BETWEEN:   MICHAEL DAVID ROWE
Appellant
AND
THE ROMAN CATHOLIC ARCHBISHOP OF PERTH
First Respondent
REGISTRAR OF TITLES
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   MASTER SANDERSON
Citation: ROWE -v- THE ROMAN CATHOLIC ARCHBISHOP OF PERTH [2020] WASC 487
File Number            :   CIV 2009 of 2020

Catchwords:

Practice and procedure - Interim order - Application for stay or interlocutory injunction pending determination of appeal - Judgment dismissing appellant's application to extend operation of caveat - Where appellant contended interlocutory injunction required because appeal and associated proceedings would be rendered nugatory - Balance of convenience - Grant of interlocutory injunction in the interests of justice

Legislation:

Nil

Result:

Application for interlocutory injunction granted

Category: B

Representation:

Counsel:

Appellant	:	P J Hannon
First Respondent	:	E M Heenan
Second Respondent	:	No appearance

Solicitors:

Appellant	:	Pagin & Mak Lawyers
First Respondent	:	Irdi Legal
Second Respondent	:	No appearance

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

Above All Rigging & Site Modifications Pty Ltd v Lang [No 2] [2015] WASC 415
Bashford v Bashford [2008] WASC 138
Carnie v Esanda Finance Corporation Ltd [1995] HCA 9; (1995) 182 CLR 398
Davies v Davies [2009] WASCA 238
Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations (No 3) [2011] FCA 1019
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Rowe v Albany Chalets Pty Ltd [2015] WASC 85
Rowe v The Roman Catholic Archbishop of Perth [2020] WASC 487
Saunders v Vautier (1841) 4 Beav 115; 49 ER 282
Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168

REASONS OF THE COURT:

Introduction

We heard an application by the appellant (Fr Rowe) on 21 May 2021 for a stay of the primary orders, alternatively, an injunction restraining the first respondent (Archbishop) from dealing with the land the subject of the primary proceedings.
The dispute relates to the land commonly known as 11 Hehir Street, Belmont in the state of Western Australia (Hehir Street land) over which Fr Rowe contended that he had a caveatable interest. On 11 August 2020, Fr Rowe lodged a caveat in respect of the Hehir Street land (Caveat).
Fr Rowe commenced the primary proceedings (caveat proceedings) to extend the operation of the Caveat over the Hehir Street land. On 6 April 2021, the master dismissed the application and published written reasons on 19 January 2021: Rowe v The Roman Catholic Archbishop of Perth[1] (primary decision).
[1] Rowe v The Roman Catholic Archbishop of Perth [2020] WASC 487.
By his application, Fr Rowe sought a stay of the master's order, alternatively, an injunction to restrain the Archbishop from dealing with the Hehir Street land.
At the hearing on 21 May 2021, we granted the application and made the orders referred to in [53] below. We said we would provide written reasons. These are our reasons.

Background

The master made the following findings as to the background facts.
St Anne's Church is situated on the Hehir Street land.[2] St Anne's Church was originally under the pastoral care of the Cloverdale Parish in the Archdiocese of Perth. In 2008, the then Roman Catholic Archbishop of Perth (Archbishop Hickey) confirmed that St Anne's Church in Belmont would be the permanent location for the Latin Mass community to worship.[3] From 2010 onwards, St Anne's Church has been used exclusively by the Latin Mass community, with Fr Rowe as its chaplain.[4]
[2] Primary decision [3].
[3] Primary decision [4].
[4] Primary decision [7].
In April 2019, the current Roman Catholic Archbishop of Perth (Archbishop Costelloe) informed Fr Rowe that the Cloverdale Parish owned St Anne's canonically, and that the Hehir Street land belonged to the Cloverdale Parish. Fr Rowe was also informed that Archbishop Costelloe had given the Cloverdale Parish priest permission to sell some of the Hehir Street land and use the sale proceeds for the Cloverdale Parish. This was at odds with Fr Rowe's view of the position of St Anne's Church and the Hehir Street land.[5]
[5] Primary decision [8].
Between 2009 and October 2019, money, labour and material was expended on the Hehir Street land on the basis that the Latin Mass community had been established as a quasi-parish at St Anne's Church.[6]
[6] Primary decision [9].
In December 2019, Fr Rowe commenced proceedings CIV 3175 of 2019 against the Archbishop, described as the 'main proceedings'.[7] In the main proceedings, Fr Rowe sued in a 'representative' capacity on behalf of himself and the 'St Anne's community'.[8] In the main proceedings, Fr Rowe pleaded 'Proprietary estoppel by encouragement', claiming that the Archbishop had represented that the 'St Anne's community' would hold property in the same manner as a parish under the laws of the Roman Catholic Church.[9] Fr Rowe also pleaded 'Proprietary estoppel by acquiescence', claiming that the Archbishop knew, or ought to have known, the 'St Anne's community' would assume they would remain a parish and did nothing to disavow them of that belief.[10] Fr Rowe sought a declaration that the Archbishop holds the Hehir Street Land upon constructive trust for Fr Rowe and the 'St Anne's community', or in the alternative, that the land was subject to an equitable charge 'in such amount or upon such terms as the court thinks fit'.[11]
[7] Primary decision [10].
[8] Primary decision [12].
[9] Primary decision [15].
[10] Primary decision [16].
[11] Primary decision [17], [19].
Fr Rowe lodged the Caveat on 11 August 2020, pursuant to the provisions of the Transfer of Land Act1893 (WA) (Act).

Primary proceedings

On 16 September 2020, the Registrar of Titles issued a notice pursuant to s 138B of the Act.[12]
[12] Primary decision [11].
On 6 October 2020, the master made an order extending the operation of the Caveat pursuant to s 138C of the Act.
In the caveat proceedings that were the subject of the primary decision, Fr Rowe sought to extend the operation of the Caveat until further orders were made in other proceedings commenced by Fr Rowe against the Archbishop, including the main proceedings.[13]
[13] Primary decision [2].
Fr Rowe submitted that the Code of Canon Law of the Roman Catholic Church was akin to foreign law. Fr Rowe submitted that issues raised by Canon Law must be viewed as a question of fact, and if there is conflict between expert opinion provided, then the court weighs the evidence in the same way as any conflict of expert evidence.[14] According to the master, Fr Rowe also submitted that Canon Law 'is the equivalent of the rules of an unincorporated association', and so 'the court will not interfere with the internal decisions made by church authorities pursuant to Canon Law unless it is protecting or enforcing a right recognised at common law or in equity'.[15] Fr Rowe further submitted that the Archbishop, in not applying for summary judgment in the main proceedings, acknowledged that there was a 'serious question to be tried'.[16]
[14] Primary decision [22].
[15] Primary decision [23].
[16] Primary decision [31].
The Archbishop submitted that Canon Law was of no relevance to the dispute.[17]
[17] Lex situs: the law of the place in which property (whether real or personal, tangible or intangible) is situated.
The Archbishop also contended that:[18]
1.If, as Fr Rowe claimed, the 'St Anne's community' would hold the relevant property, then there could be no basis to recognise a constructive trust or equitable charge over the Hehir Street land in favour of Fr Rowe.
2.Fr Rowe failed to identify what property was allegedly held by the 'St Anne's community', resulting in there being no allegation as to why the Hehir Street land would be held on constructive trust or subject to an equitable charge in favour of Fr Rowe.
3.Fr Rowe's estoppel claim was underpinned by the proposition that 'the St Anne's community would hold property in the same manner as a Parish under the laws of the Roman Catholic Church', whereas under Canon Law, neither the priest nor the 'St Anne's community' would hold property in their own right or on trust.
[18] Primary decision [25].

The primary decision

In response to Fr Rowe's submissions concerning Canon Law, the master held that the matter was to be determined by reference to the legal principles applicable in Western Australia, and that the rights claimed by Fr Rowe must arise at law or in equity only.[19]
[19] Primary decision [24].
The master accepted the first two submissions of the Archbishop referred to in [17] above. The master said:[20]
[As] to the first and second points made by counsel for the [Archbishop], I am satisfied these have been made good. The question really is this - on what basis can a constructive trust or equitable charge on the [Hehir] Street land in favour of [Fr Rowe] be said to arise? True it may be that the 'St Anne's community' made contributions to the upkeep and improvement of the [Hehir] Street land. But that is what parish communities do. An Archdiocese is not responsible for the upkeep of each and every aspect of each and every parish. There is nothing in the pleading or in the evidence that suggests that the St Anne's Parish was in any different position to any other parish in the Archdiocese of Perth - other, perhaps, than that their services were conducted in Latin. But there is simply nothing in the pleaded facts which would render it unconscionable for the [Archbishop] to deny [Fr Rowe] and the 'St Anne's community' a proprietary interest in the Hehir Street land.
[20] Primary decision [30].
The master also accepted the Archbishop's third contention referred to in [17] above. The master said in that regard:[21]
[21] Primary decision [27] - [29].
Counsel for the [Archbishop] submits, and I accept, that the three experts agree on the following four points. At Canon Law:
(a)a 'parish' is a 'juridical person' separate from the parish priest and the parishioners;
(b)the 'temporal goods' owned by a parish are known as 'ecclesiastical goods';
(c)the property in ecclesiastical goods is vested in a parish, not the parish priest or the parishioners; and
(d)the parish priest has authority to administer the ecclesiastical goods of his parish, which must be done in accordance with Canon Law, but has no property in them.
Based on these principles, neither [Fr Rowe] nor the 'St Anne's community' could hold any property at Canon Law to the Hehir Street land, it being ecclesiastical goods. It follows then the pleaded assumptions giving rise to the estoppel are fundamentally flawed. If the position at Canon Law was that the parish priest and the parishioners could have a proprietary interest in ecclesiastical goods and had made assumptions and spent money in the belief that proprietary interest would be recognised, then there may be an argument. But there being no basis at Canon Law on which Fr Rowe and the 'St Anne's community' could have assumed they would have ever obtained any proprietary interest in the ecclesiastical goods, nothing done or not done by the [Archbishop] could make no difference.
Furthermore, counsel for the [Archbishop] makes the point that at Canon Law neither [Fr Rowe] nor the 'St Anne's community' could or would have any property in the ecclesiastical goods of the 'quasi‑parish'. Effectively, what was being submitted was that as the 'St Anne's community' is a quasi‑parish, it is one step further removed from the principles which would apply to a parish.
The master also rejected Fr Rowe's submission that the Archbishop, in not applying for summary judgment in the main proceedings, thereby acknowledged that there was a 'serious question to be tried'.[22] The master found there was 'no triable issue' in respect of the caveat proceedings.[23]
[22] Primary decision [31].
[23] Primary decision [32].

The appellant's case

The appellant's case filed on 27 April 2021 contains 17 grounds of appeal.
Ground 1 alleges that by reason of the errors pleaded in grounds 2 ‑ 17, the master erred in not making an order under s 138C of the Act to extend the operation of the Caveat pending the outcome of the main proceedings.
Ground 2 alleges the master erred in law in finding Fr Rowe did not identify the property which the 'St Anne's community' would hold. Fr Rowe further alleges the master should have held that the amended statement of claim identified the Hehir Street land as the relevant property.
Ground 3 alleges that, in the event the amended statement of claim did not identify the Hehir Street land as the relevant property, the master erred in law in failing to take account of:
1.relevant amendments in Fr Rowe's supplementary outline of submissions in the caveat proceedings; and
2.the right conferred on Fr Rowe under the Rules of the Supreme Court 1971 (WA) (Rules) to make such amendments in the main proceedings.
Ground 4 alleges that the master erred in law in finding at [30] of the primary decision:
1.parishioners who contribute to the upkeep and improvement of parish property cannot acquire any interest therein; and
2.there was nothing in the amended statement of claim to render it unconscionable for the Archbishop to deny Fr Rowe or the 'St Anne's community' a proprietary interest in the Hehir Street land.
Grounds 5 and 7 allege errors of law in relation to the master's finding at [20] of the primary decision that the 'St Anne's community' does not constitute an unincorporated association. Ground 5 alleges the finding was made without Fr Rowe's counsel being given an opportunity to address the issue. Ground 7 alleges that the master erred by finding the 'St Anne's community' does not constitute an unincorporated association, and further, that the 'St Anne's community' is a 'mere collection of individuals'.
Grounds 6 and 8 allege errors of law in relation to the master's finding at [20] of the primary decision that Fr Rowe and the 'St Anne's community', as beneficiaries of the constructive trust, would be entitled to call for a transfer of legal title to the Hehir Street land to them. Ground 6 alleges that the finding was made without Fr Rowe's counsel being given an opportunity to address the issue. Ground 8 alleges that the master's finding was wrong because:
1.the so‑called rule in Saunders v Vautier[24] does not apply to real estate;
2.Fr Rowe and the 'St Anne's community' are not sui juris and absolutely entitled to the legal estate; and
3.equity courts are flexible in granting relief in estoppel cases.
[24] Saunders v Vautier (1841) 4 Beav 115; 49 ER 282.
Ground 9 alleges the master erred in law by failing to consider the legal impact of Fr Rowe suing on behalf of himself and the 'St Anne's community' in a representative capacity under O 18 r 12 of the Rules despite the reliance of Fr Rowe's counsel on case law concerning that rule. Fr Rowe alleges the master should have held the members of the 'St Anne's community' can assert the relief claimed.
Ground 10 alleges the master erred in law by failing to consider the submission of Fr Rowe's counsel that, although the common law does not recognise the legal existence of a parish or 'quasi-parish', it recognises the existence of unincorporated associations. Fr Rowe alleges the master should have held the members of 'St Anne's community' can assert the relief claimed, even as an unincorporated association.
Ground 11 alleges the master erred in law in failing to consider the submission of Fr Rowe's counsel as to the analogy between the main proceedings and the 'parishioners and parsons' reference in Carnie v Esanda Finance Corporation Ltd.[25] The master thereby erred in his assessment of the strength of the caveatable interest claim in the Hehir Street land and the merits of the main proceedings.
[25] Referring to Carnie v Esanda Finance Corporation Ltd [1995] HCA 9; (1995) 182 CLR 398, 429.
Ground 12 alleges that the error in ground 7 caused the master to err in concluding that the status of 'St Anne's community' precludes the existence of a constructive trust in respect of the Hehir Street land, with the 'St Anne's community' as beneficiaries.
Ground 13 alleges that even if the master was correct in finding that the 'St Anne's community' is not an unincorporated association, the master erred in law in concluding that status of the 'St Anne's community' as a 'collection of individuals' precludes the existence of a constructive trust in respect of the Hehir Street land, with the 'St Anne's community' as beneficiaries.
Ground 14 alleges that the master erred in fact in finding that the 'St Anne's community' does not hold 'ecclesiastical goods' such as the Hehir Street land for the purposes of Canon Law. Accordingly, the master should have found that:
1.the 'St Anne's community' is a 'quasi-parish';
2.the Hehir Street Land (including the structures thereon such as St Anne's Church) formed part of the 'ecclesiastical goods' owned by that 'quasi-parish'; and
3.Fr Rowe, although he did not own those 'ecclesiastical goods', is bound to administer those 'ecclesiastical goods' for the benefit of the St Anne's 'quasi-parish'.
Ground 15 alleges that the master erred in law in not extending the operation of the Caveat pending the outcome of the main proceedings given:
1.the Archbishop's failure to apply for summary judgment in the main proceedings within the time limit prescribed by the court;
2.the Archbishop's acceptance that the balance of convenience favoured the extension of the operation of the Caveat; and
3.the complexity of the legal arguments concerning the merits of the main proceedings as disclosed by the written submissions.
Ground 16 alleges that the master erred in law in treating the failure of the Archbishop to apply for summary judgment in the main proceedings as irrelevant for the purpose of the primary decision. Fr Rowe alleges that the master should have held the failure formed a discretionary basis to extend the operation of the Caveat.
Ground 17 alleges, in effect, that the master erred in law at [23] and [24] of the primary decision in finding rights conferred under Canon Law cannot form part of a claim for equitable relief in a civil court (rather than Canonial). Fr Rowe alleges that the master should have held the main proceedings relate to property rights which may be protected in a civil court even on reliance on Canon Law.

The Act

Section 138A, s 138B, s 138C and s 138D of the Act provide:
138A.Caveats to which s 138B to 138D apply
A caveat that has not been lodged -
(a)under section 30, 176 or 223A; or
(b)by or on behalf of a beneficiary claiming under a will or settlement; or
(c)under a court order; or
(d)by the Registrar on the direction of the Commissioner; or
(e)under any written law other than this Act; or
(f)under any Commonwealth Act; or
(g)by or on behalf, or with the consent, of the Minister for Lands,
is a caveat for the purposes of sections 138B to 138D.
138B.Requiring caveator to seek court order extending s 138A caveat
(1)If a section 138A caveat has been lodged then the proprietor of the land … may apply … for the Registrar to serve the caveator with a notice to the effect that, unless the caveator takes the action referred to in subsection (2) within 21 days after the day on which the notice is served, the caveat will lapse.
(2)If the notice referred to in subsection (1) is served on the caveator then the caveat lapses 21 days after the day on which the notice was served unless, before that time, the caveator has -
(a)obtained from the Supreme Court an order extending the operation of the caveat -
(i)for such further period as is specified in the order; or
(ii)until the further order of the court;
and
(b)lodged with the Registrar a copy of the order.
138C.Supreme Court's powers on application by caveator
(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).
138D.Restrictions on caveators lodging further s 138A caveats
(1)If a section 138A caveat -
(a)is withdrawn after a notice under section 138B(1) is served on the caveator but before the caveat could lapse under section 138B(2); or
(b)has lapsed under section 138B(2); or
(c)no longer has effect because of the operation of an order made, or a dismissal, under section 138C by the Supreme Court,
then the caveator cannot lodge with the Registrar any further section 138A caveat in respect of the same land unless -
(d)the consent of the proprietor to do so and, if the notice issued under section 138B(1) was issued on the application of a judgment creditor, the consent of the judgment creditor to do so are endorsed on the further caveat; or
(e)the Supreme Court has made an order giving leave for the lodgment of the further caveat and a copy of that order has been served on the Registrar.
(2)If a caveat has been withdrawn before a notice under section 138B(1), if any, is served on the caveator then nothing in subsection (1) prevents the caveator from lodging a further section 138A caveat in respect of the same land.

Fr Rowe's application

The application

As noted earlier, Fr Rowe sought a stay of the master's orders, alternatively an interlocutory injunction, pending the determination of the appeal.

The affidavits

On 12 April 2021, Fr Rowe filed an affidavit of L Makaritis, a solicitor for Fr Rowe, in support of the application. Mr Makaritis deposed, in effect, that Fr Rowe had sought an undertaking from the Archbishop not to sell or deal with any part of the Hehir Street land pending the outcome of the appeal, and that the Archbishop had declined to provide such an undertaking.
Fr Rowe also filed an undertaking as to damages.
On 30 April 2021, the Archbishop filed an affidavit of L Bower, a solicitor for the Archbishop, in opposition to the application. Ms Bower deposed, in effect, that the Caveat had lapsed and been removed from the certificates of title of the Hehir Street land.

Fr Rowe's submissions

On 7 May 2021, Fr Rowe filed submissions in support of the stay application. Fr Rowe submitted, in effect, the following:
1.Given that the Caveat has lapsed and been removed, the appropriate course is for interlocutory injunctive relief pending the hearing of the appeal.
2.The court is in a position to assess the strength of the appeal's prospects as the appellant's case has been filed and served. The appeal has reasonable prospects of success in the relevant sense, and there is nothing to be gained by the Archbishop in having a 'dry run' of the substantive appeal in this interlocutory application.
3.If the Hehir Street land is sold before the determination of the appeal then the appeal, as well as the related lower court matters, will be rendered nugatory.
4.The balance of convenience strongly favours an injunction restraining the Archbishop from selling the Hehir Street land before the determination of the appeal, given the allegations in the main proceedings concerning the structures on the Hehir Street land and the use of the land.
6.The Archbishop had not filed an affidavit going to the balance of convenience.

The Archbishop's submissions

The Archbishop submitted that the application has no utility for the following reasons:
1.The Caveat having lapsed, there is no utility in making a suspension order because it is impossible for the Court of Appeal to restore the Caveat which has already been removed.[26]
2.The Court of Appeal does not have the power to give leave under s 138D of the Act for the lodgement of a further caveat - that can only be done by the Supreme Court sitting in the General Division.[27]
3.Similarly, since the Caveat has lapsed, the Court of Appeal would have no power to grant the relief sought in Fr Rowe's originating summons dated 2 October 2020 even if the appeal were upheld, and there is therefore no utility in granting an interim injunction pending determination of the appeal.[28]
[26] Referring to Davies v Davies [2009] WASCA 238 [17].
[27] Referring to Davies [17]; cf Above All Rigging & Site Modifications Pty Ltd v Lang [No 2] [2015] WASC 415 [26].
[28] cf Above All Rigging [No 2] [26].
The Archbishop also submitted that the appeal has no reasonably arguable prospect of success. The Archbishop submitted (amongst other things):
The fundamental error in [Fr Rowe's] argument … is that it effectively ignores the distinction made at Canon Law between the legal (or 'juridic') personalities of the parish and those of its parishioners. [Fr Rowe's] case depends upon assimilation of the collection of individuals defined in [the main proceedings] as the 'St Anne's community' with the fictional legal (or juridic) personality of the alleged parish or quasi‑parish (recognised only at Canon Law) which [Fr Rowe] alleges was (or, more relevantly, he allegedly assumed was) established by the Archbishop (qua head of the church, not qua the statutory corporation).
…
[Fr Rowe] has not identified any arguable basis as to why there 'must' be a plaintiff with a legal personality who can, at common law (or in equity), enforce rights which exist only at Canon Law and which vest in a fictional (juridical) person who exists only at Canon Law. The proposition is contrary to the plainly correct outcome of the Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis [(2007) 70 NSWLR 565], where it was held that an unincorporated association such as, in that case, the Catholic Archdiocese of Sydney or, in this case, the (quasi) parish [Fr Rowe] alleges was created, can neither sue nor be sued at common law (or in equity) because it does not exist as a juridical entity. [Fr Rowe's] proposition is plainly incorrect and should be rejected summarily.[29]
[29] Referring to Ellis [47], [200] - [201].
The Archbishop did not dispute the terms of the proposed injunction in the event that an injunction were ordered.

Principles

In considering the grant of an injunction pending determination of an appeal in these circumstances, there are three essential considerations arising in the context of the general principles relevant to the grant of a stay of a primary court's orders: (1) whether an arguable ground of appeal is established, (2) whether the refusal of an injunction would render the appeal nugatory, and (3) whether the balance of convenience favours the grant or refusal of an injunction.[30]
[30] Above All Rigging [21]; see generally Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9]; Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168 [22].

Disposition

We were satisfied in all the circumstances that it was in the interests of justice to grant an interlocutory injunction pending the determination of the appeal. The following matters seemed to us to be of most significance.
First, we did not accept the Archbishop's submissions that an injunction would lack utility. If the court hearing the appeal were to uphold the appeal in favour of Fr Rowe, it would have the power (as counsel for the Archbishop appeared to accept) to make orders that could have been made by the primary court under s 138C(2)(a)(iii) of the Act, including the power to grant an interlocutory injunction pending the determination of the main proceedings.[31]
[31] Section 59(4) of the Supreme Court Act 1935 (WA); Bashford v Bashford [2008] WASC 138 [52]; Rowe v Albany Chalets Pty Ltd [2015] WASC 85 [36] ‑ [37]; cf Davies v Davies [2009] WASCA 238 [20].
Secondly, if an injunction were not granted, there was a risk that the Hehir Street land may be disposed of or encumbered by the Cloverdale Parish having regard to the master's findings referred to in [8] above. In that event, the appeal would be rendered nugatory if an injunction were not granted.
Thirdly, despite the arguments presented by counsel for the Archbishop, we were not in a position to conclude, in this interlocutory application, that the appeal would not succeed. We considered that it had reasonable prospects of success in the relevant sense.
Fourthly, the balance of convenience favoured the grant of an injunction. The master's findings (at [9] above) are to the effect that the land is used by a worshipping community, the members or at least some members of whom have contributed money, labour and materials in connection with the use of the land. There was no evidence that there was any urgent financial need of the Archbishop to have the land disposed of prior to the determination of the appeal.
Accordingly, we made the following orders:

1.Upon the appellant's undertaking as to damages filed in this court on 12 April 2021, until the determination of this appeal or earlier further order, the first respondent be restrained, and an injunction is hereby granted restraining the first respondent, whether by itself, its officers, servants, agents or otherwise, from advertising for sale, selling, attempting to sell, transferring, mortgaging or otherwise dealing with any part of the property commonly known as 11 Hehir Street, Belmont in the State of Western Australia (being the subject of certificate of title volume 1535 folio 900 and certificate of title volume 1536 folio 521), save in accordance with the express written permission of the appellant's solicitors or an order of the court.
2.The first respondent have liberty to apply to a single judge of appeal, on seven days written notice to the appellant's solicitors, to discharge or vary the orders referred to in paragraph 1 above.
3.The costs of this application be costs in the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DM
Associate to the Honourable Justice Murphy
25 MAY 2021