Rowe v The Roman Catholic Archbishop of Perth - [2020] WASC 487

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   ROWE -v- THE ROMAN CATHOLIC ARCHBISHOP OF PERTH [2020] WASC 487
CORAM:   MASTER SANDERSON
HEARD:   10 NOVEMBER 2020
DELIVERED          :   19 JANUARY 2021
PUBLISHED           :   19 JANUARY 2021
FILE NO/S:   CIV 2009 of 2020
BETWEEN:   MICHAEL DAVID ROWE
Plaintiff
AND
THE ROMAN CATHOLIC ARCHBISHOP OF PERTH
First Defendant
REGISTRAR OF TITLES
Second Defendant

Catchwords:

Property law - Application for extension of caveat - Effect of Canon Law - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	P J Hannan
First Defendant	:	E M Heenan
Second Defendant	:	No appearance

Solicitors:

Plaintiff	:	Pagin & Mak Lawyers
First Defendant	:	Irdi Legal
Second Defendant	:	No appearance

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

Scandrett v Dowling (1992) 27 NSWLR 483

MASTER SANDERSON:

When any of you has a grievance against another, do you dare take it to court before the unrighteous, instead of taking it before the saints? Do you not know that the saints will judge the world? And if the world is to be judged by you are you incompetent to try trivial cases? Do you not know that we are to judge angels – to say nothing of ordinary matters? If you have ordinary cases, then, do you appoint as judges those who have no standing in the Church? I say this to your shame. Can it be that there is no one among you wise enough to decide between one believer and another, but a believer goes to court against a believer – and before unbelievers at that?
In fact, to have law suits at all with one another is already a defeat for you. Why not rather be wronged? Why not rather be defrauded? But you yourselves wrong and defraud – and believers at that.
1 Corinthians 6.1-8

Given the propensity of the ancient Greeks to squabble among themselves, it is hardly surprising there were disputes within the Christian community in Corinth. If it was these disputes that led to Paul's letter, we should be grateful to the protagonists. This dispute is between Fr Rowe, an ordained and practising priest and the Archdiocese of Perth. To date it has produced no correspondence of any ecclesiastical merit. Although both parties have resorted to evidence from experts in Canon Law, the dispute falls to be determined on secular principles. It is unlikely this dispute will be referenced by anyone in 2,000 years' time.
This is in fact one of three actions presently on foot, all of which have been initiated by Fr Rowe against the Perth Archdiocese. This action concerns an application by Fr Rowe to extend the operation of a caveat he has lodged over certain property in Belmont owned by the Archdiocese. In what might be described as the 'main proceeding' (CIV 3175 of 2019), Fr Rowe is seeking a declaration he holds certain property on trust for a community to which he ministers. The third action in which Catholic Homes Inc is named as first defendant, while separate and distinct, really depends upon the outcome of the main proceedings. The subject matter of that action is an easement which the Archdiocese proposes to extinguish. I mention this third action only for the sake of completeness. In this application, what is of concern is the main action and the related caveat proceedings.

Background facts

During 1940, Archbishop Prendiville established the Roman Catholic Parish of Belmont. In 1960 he established the Roman Catholic Parish of Cloverdale.[1] In June 1979, the defendant became the registered proprietor of Lot 10 and Lot 152, a parcel of land commonly known as 11 Hehir Street, Belmont.[2] St Anne's Church, a presbytery, garage building, office building and car park are situated on Lot 10. A hall and car park are situated on Lot 152.[3]
[1] Affidavit of Luke William Makaritis sworn 2 October 2020; Annexure LWM7 (p 22) [10] and [12].
[2] Affidavit of Luke William Makaritis sworn 2 October 2020 [9] – [15]; Annexures LWM2 and LWM3.
[3] Affidavit of Luke William Makaritis sworn 2 October 2020; Annexure LWM7 (p 24) [23] - [26].
In 1991 Archbishop Hickey was installed as the Archbishop of the Roman Catholic Archdiocese of Perth.[4] From about 1996, with the permission of Archbishop Hickey, Pre‑Vatican 2 Rites commenced being offered in the Pro‑Cathedral of St John in Victoria Avenue, Perth. In the main the celebrant was Fr Rowe.[5] During 2008, Archbishop Hickey directed the Belmont Parish be placed under the pastoral care of the parish priest of the Cloverdale Parish.[6] On 16 April 2008, Archbishop Hickey sent a letter to Fr Rowe in which His Grace confirmed the choice of the Church of St Anne, Belmont as the permanent location for the Latin Mass community which was then worshiping at, but had outgrown, the Pro‑Cathedral.[7]
[4] Affidavit of Luke William Makaritis sworn 2 October 2020; Annexure LWM7 (p 22) [8].
[5] Affidavit of Luke William Makaritis sworn 2 October 2020 (p 27) [37] and [38].
[6] Affidavit of Luke William Makaritis sworn 2 October 2020 (p 22) [13].
[7] Affidavit of Michael David Rowe sworn 26 October 2020 [23] – [27].
It is convenient at this point to say something about the nature of the community to which Fr Rowe ministers. Prior to the Church Council, which has become known as Vatican 2, all catholic masses worldwide were conducted in Latin. In an attempt to modernise and make more relevant the liturgy, Vatican 2 decided masses would be conducted in the local language. The right to conduct masses in Latin, while not eliminated, was severely limited. Many of the faithful were upset by this change. Perhaps understandably, many believers could not accept the Latin rite which had been used for almost 2,000 years could be cast aside. Breakaway groups were formed which continued to use the Latin rite. These persons were not in any sense heretics but their practices were at odds with the dictates of the Catholic Church.
Pope Benedict XVI determined the followers of the Latin mass should be brought back into the fold. In July 2007, he issued an apostolic letter under the title Summorum Pontificum. This document specified the circumstances in which priests of the Latin church could celebrate mass according to what the Pontiff referred to as the 'missal promulgated by Blessed John XXIII in 1962'. That was then the latest edition of the Roman Missal in the form known as the Tridentine Mass or traditional Latin mass. Fr Rowe is probably one of the few priests who can celebrate the Latin mass and clearly he has developed a loyal following.
To return to the narrative, on 31 May 2009 the last mass was offered at St Anne's Church as part of the schedule of the Cloverdale Parish.[8] During 2009, Fr Rowe met with the parish priest of Cloverdale and they conducted a handover of St Anne's Church and the other property at 11 Hehir Street.[9] Furthermore in 2009, building works were undertaken to make St Anne's Church appropriate for the Pre‑Vatican 2 Latin Mass.[10] Around Christmas 2009, the Latin Mass community was able to hold its first Latin Mass at St Anne's Church.[11] On 17 March 2010, there was an official opening of the refurbished St Anne's Church as the permanent home of the Latin Mass community.[12] From that date onwards, St Anne's Church has been used exclusively by the Latin Mass community with Fr Rowe as its chaplain.[13]
[8] Affidavit of Luke William Makaritis sworn 2 October 2020 (p 27) [39].
[9] Affidavit of Michael David Rowe sworn 26 October 2020 [23] – [27].
[10] Affidavit of Michael David Rowe sworn 26 October 2020 [28] – [30].
[11] Affidavit of Michael David Rowe sworn 26 October 2020 [31].
[12] Affidavit of Michael David Rowe sworn 26 October 2020 [32].
[13] Affidavit of Michael David Rowe sworn 26 October 2020 [33].
By letter dated 9 July 2020, Archbishop Hickey appointed Fr Rowe the Rector of St Anne's Church.[14] On 21 March 2012, Archbishop Costello was installed as the Archbishop of the Roman Catholic Archdiocese of Perth.[15] In a letter dated 31 January 2019 from Archbishop Costello to Fr Rowe, Archbishop Costello referred to the Hehir Street land as belonging to the Cloverdale Parish.[16] In April 2019, Fr Rowe had a meeting with the Auxiliary Bishop of the Perth Roman Catholic Archdiocese, Bishop Sproxton. Also present was a Mr Russo, the financial administrator of the Perth Roman Catholic Archdiocese. Fr Rowe was informed Archbishop Costello was of the view the Cloverdale Parish now owned St Anne's canonically. Fr Rowe was also informed Archbishop Costello had given the Cloverdale Parish priest permission to sell some of the Hehir Street land and use the sale proceeds for Cloverdale Parish purposes.[17] Clearly the position of the Archbishop was at odds with what Fr Rowe understood to be the position.
[14] Affidavit of Michael David Rowe sworn 26 October 2020 [34]; Annexure MDR2.
[15] Affidavit of Luke William Makaritis sworn 2 October 2020 (p 22) [9].
[16] Affidavit of Michael David Rowe sworn 26 October 2020 [50]; Annexure MDR3.
[17] Affidavit of Michael David Rowe sworn 26 October 2020 [53] – [58].
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.[18] For present purposes, it is not relevant to detail the work that was undertaken. It was, on the plaintiff's case, an important fact work had been undertaken and money had been spent. That was accepted, at least for the purposes of this application, by the defendant.
[18] Affidavit of Michael David Rowe sworn 26 October 2020 [34] – [48].
In October 2019, Fr Rowe lodged with the Registrar of Titles a caveat over the Hehir Street land.[19] In December 2019, Fr Rowe commenced the main proceedings. A directions hearing in the main action was held on 23 January 2020 and I made an order that any application by the defendant for summary judgment was to be brought by 5 February 2020. No such application was filed. The plaintiff sees this as a point of some significance and I will refer to this later in these reasons. Action CIV 1284 of 2020 was commenced on 2 February 2020.
[19] Affidavit of Michael David Rowe sworn 26 October 2020 [59] – [62].
For reasons not presently relevant, the caveat lodged by Fr Rowe was not actually noted on the title to the Hehir Street land. On 11 August 2020, Fr Rowe lodged a caveat which is the subject of these proceedings. A s 138B notice was issued by the Registrar of Titles on 16 September 2020. That is what led to this action. The caveat has been extended pending the determination of the plaintiff's application for an extension of the caveat until the trial of the action.

Issues in the main proceeding

An amended statement of claim was lodged in the main proceeding on 26 February 2020. The capacity in which Fr Rowe brings his action is a central issue in this application. Paragraphs 1 and 2 of the amended statement of claim deal with this issue (the same plea as found in each of the three actions):
1. The Plaintiff (Fr Rowe) sues in a representative capacity, pursuant to Order 6 Rule 5 and Order 18 Rule 12 (1) of the Rules of the Supreme Court 1971 (WA), on behalf of himself and persons (St Anne's Community) who:
(1) wish to avail themselves of the Rites of the Roman Catholic Church in force immediately prior to the Second Vatican Council (1962 to 1965) and in particular the Rite of Holy Mass contained in the 1962 edition of the Roman Missal (Pre-Vatican 2 Rites); and
(2) regularly attend Holy Mass at the church commonly known as 'St Anne's Belmont'.
2. Fr Rowe claims the relief set out in the prayers below on behalf of:
(1) himself; and
(2) the St Anne's Community

In pars 3 through to 36, the plaintiff pleads in some detail the fact of Lots 10 and 152 and the physical circumstances of each lot. Paragraphs 37 through to 56, the plaintiff sets out the history of the Latin mass community at St Anne's Church. Importantly, par 50 reads as follows:
By the Appointment Letter, Archbishop Hickey requested Fr Rowe to conduct the St Anne's Community in a manner inter alia akin to a 'quasi-parish', as that expression is understood according to the laws of the Roman Catholic Church.
Paragraphs 57 through to 66 plead the work that has been done and the money which has been spent by the Latin Mass community on St Anne's Church and the related facilities. Paragraphs 67 to 71 appear under the subheading 'Amalgamation Decree'. Those paragraphs read as follows:
67. On 30 October 2018, Archbishop Costelloe made a written decree (Amalgamation Decree), concerning Belmont Parish, Redcliffe Parish and Cloverdale Parish.
68. The Amalgamation Decree was purportedly made in accordance with the laws of the Roman Catholic Church.
69. The Amalgamation Decree provided that the territorial boundary of Cloverdale Parish henceforth comprised the previous territorial boundaries of Belmont Parish, Redcliffe and Cloverdale Parish.
70. The Amalgamation Decree provided that Belmont Parish, Redcliffe Parish and Cloverdale Parish were amalgamated into a parish to be known as 12 'Cloverdale-Belmont-Redcliffe Parish' under the pastoral care of the then parish priest of the Cloverdale Parish.
71. The Amalgamation Decree provided that the provisions thereof took effect from 30 October 2018.
Paragraphs 74 to 79 plead 'Proprietary estoppel by encouragement'. A flavour of these pleas can be demonstrated by quoting par 74:
By reason of the matters pleaded in Part J above, the Perth Roman Catholic Archbishop represented (Establishment Representation) to Fr Rowe (and thereby to Catholics who had regularly attended Holy Mass in the ProCathedral according to Pre-Vatican 2 Rites) that the St Anne's Community would hold property in the same manner as a parish under the laws of the Roman Catholic Church.
Paragraphs 80 through to 85 plead 'Proprietary estoppel by acquiescence'. Essentially what is pleaded is that the defendant 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.
By pars 86 to 88 the plaintiff pleads the defendant holds Lot 10 and Lot 152 'upon constructive trust for Fr Rowe and the St Anne's community'. As an alternative, it is said the defendant holds the legal title to the two lots subject 'to an equitable charge in such amount or upon such terms as the court thinks fit'.
Paragraphs 89 through to 98 deal with 'Canon law'. These paragraphs read as follows:
89. The Roman Catholic Church is governed by laws contained in inter alia a document commonly referred to as the '1983 Code of Canon Law', promulgated by Pope Saint John Paul II on 25 January 1983 (CCL).
90. Fr Rowe pleads as per Part R below and, alternatively, as per Part S below.
R. St Anne's Community as a 'quasi-parish'
91. Upon a true construction of the Appointment Letter and the CCL, the St Anne's Community constitutes a 'quasi-parish' (as that expression is understood in the CCL) of which Fr Rowe is the 'quasi-parish priest'.
92. By virtue of the CCL and the status of the St Anne's Community as a 'quasiparish', the Hehir Street Land and all improvements thereon (including St Anne's Church, St Anne's Presbytery, St Anne's Hall, St Anne's Office & St Anne's Garage) are the sole property of the St Anne's Community as a 'quasi-parish'.
93. By virtue of the CCL and the status of the St Anne's Community as a 'quasiparish', the Hehir Street Land and all improvements thereon (including St Anne's Church, St Anne's Presbytery, St Anne's Hall, St Anne's Office & St Anne's Garage) are not the property of the Cloverdale Parish or the purported 'Cloverdale-Belmont-Redcliffe Parish'.
94. By virtue of the CCL and the status of the St Anne's Community as a 'quasiparish', no part of the Hehir Street Land (including St Anne's Church, St Anne's Presbytery, St Anne's Hall, St Anne's Office & St Anne's Garage) may be sold without the consent of Fr Rowe as the 'quasi-parish priest' of the St Anne's Community 'quasi-parish'.
S. St Anne's Community as a 'non-parochial church'
95. Upon a true construction of the Appointment Letter and the CCL:
(1) the St Anne's Community constitutes a group of people who meet by common consent for worship (as that concept is understood in the CCL) at St Anne's Church;
(2) St Anne's Church is a 'non-parochial church' (as that expression is understood in the CCL); and
(3) Fr Rowe is the rector (as that expression is understood in the CCL) of St Anne's Church.
96. By virtue of the matters pleaded in paragraph 95 above and the CCL, the Hehir Street Land and all improvements thereon (including St Anne's Church, St Anne's Presbytery, St Anne's Hall, St Anne's Office & St Anne's Garage) are the sole property of the Perth Roman Catholic Archbishop upon trust for Fr Rowe and the St Anne's Community.
97. By virtue of the matters pleaded in paragraph 95 above and the CCL, the Hehir Street Land and all improvements thereon (including St Anne's Church, St Anne's Presbytery, St Anne's Hall, St Anne's Office & St Anne's Garage) are not the property of the Cloverdale Parish or the purported 'Cloverdale-Belmont-Redcliffe Parish'.
98. By virtue of the matters pleaded in paragraph 95 above and the CCL, no part of the Hehir Street Land (including St Anne's Church, St Anne's 16 Presbytery, St Anne's Hall, St Anne's Office & St Anne's Garage) may be sold without the consent of Fr Rowe as the rector of St Anne's Church as a 'non-parochial church'.
All of this then leads to the prayer for relief which reads as follows:
AND FR ROWE CLAIMS:
(1) A declaration that the Perth Roman Catholic Archbishop holds legal title to Lot 10 and Lot 152 upon constructive trust for Fr Rowe and the St Anne's Community.
(2) In the alternative to prayer (1) above, a declaration that the Perth Roman Catholic Archbishop holds legal title to Lot 10 and Lot 152 subject to an equitable charge in favour of Fr Rowe (as trustee for the St Anne's Community) in such amount and upon such terms as the Court thinks fit.
(3) In the alternative to prayers (1) and (2) above, an order that the Perth Roman Catholic Archbishop pay equitable compensation to Fr Rowe (as trustee for the St Anne's Community).
(4) An injunction restraining the Perth Roman Catholic Archbishop from causing a notice under section 138B of the Transfer of Land Act 1893 (WA) to be issued in respect of Fr Rowe's Caveat.
(5) An injunction restraining the Perth Roman Catholic Archbishop from attempting to sell Lot 10 and Lot 152 without the consent of Fr Rowe as the 'quasi-parish priest' of the St Anne's Community 'quasi-parish'.
(6) In the alternative to prayer (5) above, an injunction restraining the Perth Roman Catholic Archbishop from attempting to sell Lot 10 and Lot 152 without the consent of Fr Rowe as the rector of St Anne's Church as a 'nonparochial church'.
(7) In the alternative to prayers (5) & (6) above, damages in lieu of an injunction under section 25 (10) of the Supreme Court Act 1935 (WA).
(8) Interest under section 32 of the Supreme Court Act 1935 (WA) on any sum awarded as equitable compensation or damages at such rate and for such period as the Court thinks fit, such damages to be held by Fr Rowe on trust for the St Anne's Community.
(9) Such further or other relief as the Court thinks fit.
(10) Costs.
It must be said the relief sought by Fr Rowe does have about it some logical difficulty. If a declaration in terms of par (1) of the prayer for relief was made, presumably Fr Rowe and the 'St Anne's community' would be entitled to call for a transfer of the two lots into their names. Whatever may be the position of the 'St Anne's community' it is not a body corporate or an unincorporated association. It is a collection of individuals who, from time to time, worship at St Anne's Church. There is then a logical difficulty in deciding who would actually be the registered proprietors of the land – apart, of course, from Fr Rowe. If Fr Rowe were to pass away, to whom would the land pass? Presumably, the land would pass to the beneficiaries named in Fr Rowe's will. That could be anyone. I point out these logical difficulties at this stage because they form the basis of the defendant's opposition to this application.

The caveat proceedings CIV 2009 of 2020

In this action three affidavits of Canon Lawyers were lodged. The first in time was an affidavit of Rodger Joseph Austin sworn 20 October 2020. That affidavit was filed on behalf of the first defendant and was the only affidavit upon which the first defendant relied. The plaintiff then filed two affidavits, one of Brian Walter Limbourn, the other by John Stuart‑James, both sworn 26 October 2020. All three affidavits offer opinions as to the impact of the Code of Canon Law of the Catholic Church in the present circumstances. There was a difference between the plaintiff and the defendant as to how Canon Law ought be approached.
It was the plaintiff's position, Canon Law was akin to foreign law. It was submitted the proper approach on that basis was to view the issues raised by Canon Law as a question of fact in the same way as foreign law must be proved in a court as a matter of fact. It is not treated by courts as a matter of law. So expert opinion can be provided and if there is conflict between the experts, then the court weighs the evidence in the same way as any conflict of expert evidence is evaluated.
It is the defendant's position, Canon Law is of no relevance to this dispute. That is because either West Australian law applies as the lex situs determinative of the parties' rights in respect of the moveable property located within Western Australia or as the lex fori applicable to determination of the plaintiff's equitable claims. The plaintiff says Canon Law is the equivalent of the rules of an unincorporated association. That being 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. Both parties referred to the Court of Appeal decision in Scandrett v Dowling (1992) 27 NSWLR 483.
In my view, this matter falls to be determined entirely on legal principles applicable in this State. At issue is the rights to real property. Those rights may be equitable and they may be legal but they cannot be rights which are subject to Canon Law. In fact, the claims made by the plaintiff (putting to one side the reliance on Canon Law) are said to arise in equity. The first defendant is the registered proprietor of the relevant lots and as such is entitled to all the rights and privileges attached to ownership of land in fee simple. It will only be if the plaintiff is able to establish some equitable right that an order will be made extending the operation of the caveat.
The first defendant advances three reasons why the plaintiff has no caveatable interest in the property. First, it is said the plaintiff's claim is that the persons, other than himself, namely those constituting 'St Anne's community' would hold the relevant property. If that is the case, there is no basis to recognise a constructive trust or equitable charge on the Hehir Street land in favour of the plaintiff. Second, it is said the plaintiff has failed to identify what 'property' it is alleged would be held by the 'St Anne's community'. That results in there being no allegation as to why the Hehir Street land is said to be held by the first defendant on constructive trust or equitable charge in favour of the plaintiff. Finally, it is said the allegation underpinning the estoppel claims is that either Fr Rowe or the 'St Anne's community' assumed that 'the St Anne's community would hold property in the same manner as a parish under the laws of the Roman Catholic Church'. In fact Canon Law is to the effect that neither the plaintiff nor the 'St Anne's community' would hold any property in respect of the Hehir Street land in their own right or on trust.[20]
[20] First defendant's submission in opposition to application for extension of caveat filed 3 November 2020 [18] - [20].
This last point depends on what the defendant says is the canonical position agreed by all three experts. It is convenient to deal with this last point first.
Counsel for the first defendant 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.[21]
[21] First defendant's submission in opposition to application for extension of caveat filed 3 November 2020 [28].
Based on these principles, neither the plaintiff 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 defendant could make no difference.
Furthermore, counsel for the defendant makes the point that at Canon Law neither the plaintiff 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.
Returning then to the first and second points made by counsel for the defendant, 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 Hiher Street land in favour of the plaintiff be said to arise? True it may be that the 'St Anne's community' made contributions to the upkeep and improvement of the Hiher 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 defendant to deny the plaintiff and the 'St Anne's community' a proprietary interest in the Hehir Street land.
Earlier in these reasons I mentioned that the defendant had not applied for summary judgment in the main proceedings. The plaintiff submitted that amounted to an acknowledgement there was in those proceedings a serious question to be tried. In my view, that is not the effect of not applying for summary judgment. There may be all sorts of reasons why a party does not apply for summary judgment. The right to apply is just that – a right. It is not an obligation. The failure to exercise the right cannot say anything about a party's view of its own case. The failure to apply is certainly not grounds for assuming an admission.
There was no dispute between the parties as to the applicable principles on an application to extend a caveat. Here the primary question was whether there was a serious question to be tried. Counsel for the defendant conceded, and properly conceded, that if there was a triable issue, the balance of convenience favoured maintaining the caveat. But there is no triable issue. Accordingly, I would discharge the caveat.
Within 7 days of the publication of these reasons the parties ought file an agreed minute of orders or each party should file a minute together with short submissions as to the form of orders and as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CB
Associate to Master Sanderson
19 JANUARY 2021