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Spunter Pty Ltd v Hall

Spunter Pty Ltd v Hall

Case [2006] WASC 6 20 January 2006

Equitable Charge

Caveat

Balance of Convenience

Property Law

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SPUNTER PTY LTD -v- HALL & ANOR [2006] WASC 6

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 6
Case No:	CIV:1142/2005	Heard:	19 DECEMBER 2005
Coram:	JENKINS J	Delivered:	20/01/06
No of pages:	11	Judgment Part:	1 of 1
Result:	Caveats extended on conditions
Category:	B
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Parties:	SPUNTER PTY LTD NANCY CLOONAN HALL THE REGISTRAR OF TITLES
Catchwords:	Conveyancing Caveats Extension of caveats Form of equitable charge Balance of convenience
Legislation:	Transfer of Land Act, s 138B, s 138C
Case References:	ALH Australia v McGlinn (1996) 7 BPR 15,179 Avco Financial Services Ltd v White [1977] VR 561 Bridge Wholesale Acceptance Corp (Aust) Ltd v Burnard (1992) 27 NSWLR 415 Composite Buyers Ltd v Soong (1995) 38 NSWLR 286 Corozo Pty Ltd v Total Australia Ltd [1987] 2 Qd R 11 Custom Credit Corp Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42 J & H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546 Re Charge Card Services Ltd [1987] Ch 150 Wilson v Graham (1997) 10 BPR 19,051 Australian Security Estates Pty Ltd v Bluecrest Holdings Pty Ltd (1999) 9 BPR 17,533 Bonini & Anor v Western Australian Real Estate Custodian Ltd & Anor [2001] WASC 258 Cradock v Scottish Provident Institution (1893) 69 LT 380 First Industry Corp v Goh & Anor [2003] WASC 216 Jandric v Jandric (1999) ANZ ConvR 614 Midland Brick Company Pty Ltd v Welsh & Anor [2002] WASC 248 Montagu v Earl of Sandwich (1886) 32 Ch D

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : SPUNTER PTY LTD -v- HALL & ANOR [2006] WASC 6 CORAM : JENKINS J HEARD : 19 DECEMBER 2005 DELIVERED : 20 JANUARY 2006 FILE NO/S : CIV 1142 of 2005 BETWEEN : SPUNTER PTY LTD

Plaintiff

AND

NANCY CLOONAN HALL

First Defendant

THE REGISTRAR OF TITLES

Second Defendant

Catchwords:

Conveyancing - Caveats - Extension of caveats - Form of equitable charge - Balance of convenience

Legislation:

Transfer of Land Act, s 138B, s 138C

Result:

Caveats extended on conditions

(Page 2)

Category: B

Representation:

Counsel:

Plaintiff : Mr S P O'Brien

First Defendant : Mr N N Chin

Second Defendant : No appearance

Solicitors:

Plaintiff : David Taylor

First Defendant : Nicholas N Chin

Second Defendant : No appearance

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

ALH Australia v McGlinn (1996) 7 BPR 15,179
Avco Financial Services Ltd v White [1977] VR 561
Bridge Wholesale Acceptance Corp (Aust) Ltd v Burnard (1992) 27 NSWLR 415
Composite Buyers Ltd v Soong (1995) 38 NSWLR 286
Corozo Pty Ltd v Total Australia Ltd [1987] 2 Qd R 11
Custom Credit Corp Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42
J & H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546
Re Charge Card Services Ltd [1987] Ch 150
Wilson v Graham (1997) 10 BPR 19,051

Case(s) also cited:

Australian Security Estates Pty…

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 Spunter Pty Ltd v Hall

Details

AGLC: Spunter Pty Ltd v Hall [2006] WASC 6
Case: [2006] WASC 6
Decision Date

CaseChat Overview and Summary

Spunter Pty Ltd brought this proceeding against Nancy Cloonan Hall and the Registrar of Titles. The plaintiff sought an order extending two caveats over parcels of land at Hazelmere and Mount Lawley. The first defendant opposed the application. The second defendant did not appear or file any submissions. The plaintiff relied on two deeds dated 5 October 2000 and 4 November 2000 executed by the plaintiff, the first defendant and two directors of the plaintiff. The deeds were for a loan made by the plaintiff to the first defendant. The first defendant guaranteed repayment of the loan. The deeds contained a provision that the plaintiff would have "first call" on the first defendant's "estate". The plaintiff claimed this created an equitable charge over the first defendant's land. The first defendant argued that the provision did not create an equitable charge but was a clause that would only have effect if a charge were created by some other means. The court found that there was a serious question to be tried as to whether an equitable charge had been created by the deeds. The court also found that the balance of convenience favoured extending the caveats on the condition that the plaintiff commenced and prosecuted proceedings to determine whether an equitable charge had been created by the deeds.

Orders