SMITH & ANOR -v- PARFIT & ORS [2005] WASC 250

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 250
Published:	15/11/2005
Case No:	CIV:1593/2005	Heard:	24 OCTOBER 2005
Coram:	MASTER SANDERSON	Delivered:	25/10/05
No of pages:	17	Judgment Part:	1 of 1
Result:	Caveat and injunction extended
Category:	B
PDF Version

Parties:	PHILIP STEPHEN SMITH DOROTHY ANNE SMITH CHRISTOPHER PARFIT LIEN DIEP HONG REGISTRAR OF TITLES LOUISE JACQUELINE ATKINSON MICHAEL SIMEON ARNDT ANGELA LEAH ARNDT ANDREW RAYMOND NEATE SALLY MARIE LARDER CHRISTINE ANN BLONDEL DAVID ROBIN WATT GARY JOHN SMITH ELIZABETH FLORENCE SMITH ALBERT LESLIE MORGAN NICHOLAS JOHN HARRADINE LISA JAYNE HARRADINE
Catchwords:	Practice and procedure Application for extension of caveat and an interlocutory injunction Turns on own facts
Legislation:	Nil
Case References:	Custom Credit Corp Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42 Total Marine Services Pty Ltd v Waller [2002] WASC 8 A v Hayden (No 1) (1984) 56 ALR 73 Adderley v Dixon (1824) 1 Sim & St 607 American Cyanamid Co v Ethicon Ltd [1975] AC 396 Carr v J A Berriman Pty Ltd (1953) 89 CLR 327 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 Doradel Holdings Pty Ltd v Tiger Kart Club Inc [2003] WASC 221 Evans Marshall & Co Ltd v Bertola SA [1973] 1 WLR 349 Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670 Helm Maritime Corp v Coplex Resources NL [1999] WASC 21 Kirk Contractors Pty Ltd v Lasnom Pty Ltd, unreported; SCt of WA (Owen J); Library No 950262; 31 May 1995 Kuper v Keywest Constructions Pty Ltd (1990) 3 WAR 419 Mott v Mount Edon Goldmines (Australia) Ltd (1994) 12 ACLC 319 State Transport Authority v Apex Quarries Ltd [1988] VR 187 Treweeke v Wolseley Road Pty Ltd (1973) 128 CLR 274 Tropical Traders Ltd v Goonan (1964) 111 CLR 41

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : SMITH & ANOR -v- PARFIT & ORS [2005] WASC 250 CORAM : MASTER SANDERSON HEARD : 24 OCTOBER 2005 DELIVERED : 25 OCTOBER 2005 PUBLISHED : 15 NOVEMBER 2005 FILE NO/S : CIV 1593 of 2005 MATTER : application pursuant to s 138C of the Transfer of Land Act 1893 in relation to Lot 14 on Strata Plan 45906 BETWEEN : PHILIP STEPHEN SMITH

DOROTHY ANNE SMITH

Plaintiffs

AND

CHRISTOPHER PARFIT

LIEN DIEP HONG

First Defendants

REGISTRAR OF TITLES

Second Defendant

(Page 2)

FILE NO/S : CIV 1596 of 2005 MATTER : application pursuant to s 138C of the Transfer of Land Act 1893 in relation to Lot 7 on Strata Plan 45906

BETWEEN : LOUISE JACQUELINE ATKINSON

Plaintiff

AND

CHRISTOPHER PARFIT

LIEN DIEP HONG

First Defendants

REGISTRAR OF TITLES

Second Defendant

FILE NO/S : CIV 1597 of 2005 MATTER : application pursuant to s 138C of the Transfer of Land Act 1893 in relation to Lot 13 on Strata Plan 45906

BETWEEN : MICHAEL SIMEON ARNDT

ANGELA LEAH ARNDT

Plaintiffs

AND

CHRISTOPHER PARFIT

LIEN DIEP…

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: [2005] WASC 250
Decision Date

CaseChat Overview and Summary

The case of Smith v Parfit involved multiple actions concerning the purchase of units on a property known as Strata Plan 45906. The plaintiffs in each action were purchasers who had entered into preliminary agreements to buy units "off the plan" before the units were constructed and before the issue of individual strata titles. The defendants were the registered proprietors of the property and were responsible for the development and financing of the property. The primary legal issue was whether the plaintiffs had a caveatable interest in the units, which would justify the extension of caveats and interlocutory injunctions preventing the defendants from leasing the units.

The court considered the contractual terms between the parties, particularly the preliminary agreements and the conditions precedent to the execution of formal contracts. The preliminary agreements included a condition that the purchase was subject to finance approval, and the plaintiffs failed to obtain finance by the specified deadline. The court found that there was a serious question to be tried regarding the validity of the plaintiffs' contracts and whether the defendants had the right to terminate the agreements. The court also noted that the balance of convenience favored the plaintiffs, as leasing the units would deprive them of the new property they had contracted to purchase.

Based on these findings, the court extended both the caveats and the interlocutory injunctions on the condition that the plaintiffs initiate proceedings for specific performance within seven days and apply to have the matter entered into the expedited list within seven days of the defendants filing an appearance. This would ensure a prompt resolution of the dispute, which was in the interest of all parties, particularly the defendants who were in default under their loan agreement with Bendigo Bank.

Orders