Spunter Pty Ltd v Hall [No 2] - [2007] WASC 239

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: SPUNTER PTY LTD -v- HALL [No 2] [2007] WASC 239

CORAM: SIMMONDS J

HEARD: 23 & 29 MARCH, 22 & 24 MAY 2007

DELIVERED : 19 OCTOBER 2007

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:

Application for removal of caveat - Previous decision extending caveat - Whether application could be made for removal because of new facts or change of circumstances - Whether such new facts or change of circumstances shown

Application for setting aside of default judgment in District court proceedings - No such application possible to judge in the General Division

Application for order preventing party taking fresh step in proceedings without leave - Whether or not such order should be made in the exercise of the court's inherent jurisdiction in this case

Legislation:

District Court of Western Australia Act 1969 (WA), s 79(1)(b), s 80, s 87
Supreme Court Act 1935 (WA), s 7(4), s 58(1)(b)
Transfer of Land Act 1893 (WA), s 138C

Result:

First defendant's application dismissed
Plaintiff's application dismissed

Category: B

Representation:

Counsel:

Plaintiff:     Mr D G Taylor
First Defendant             :     In person
Second Defendant         :     No appearance

Solicitors:

Plaintiff:     David Taylor
First Defendant             :     In person
Second Defendant         :     No appearance

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

Composite Buyers Ltd v Soong (1995) 38 NSWLR 286
Custom Credit Corp Ltd v Ravi Nominees Pty Ltd (1982) 8 WAR 42
Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd (2000) 22 WAR 372
Hall v Hall [2007] WASC 34
His Grace Metropolitan Petar v Macedonian United Society of Western Australia Incorporated [2003] WASC 15
Hooke v Holland [1984] WAR 16
Law v Hall [2005] WADC 75
Pindan Pty Ltd v Sunny's Redevelopment Pty Ltd [2001] WASC 104
Powell v In de Braekt [2006] WASC 264
Spunter Pty Ltd v Hall [2006] WASC 6
Wentworth v Graham [2003] NSWCA 229

SIMMONDS J:

Introduction

This is an application by the first defendant by chamber summons, originally brought on an urgent basis. The application is in large part that certain caveats lodged by the plaintiff over property of which the first defendant was registered proprietor be 'withdrawn immediately'. Jenkins J of this Court had previously made orders extending the operation of two caveats until further order. The application seeks further relief, however, both in respect of a default judgment in the District Court obtained by the plaintiffs (including the plaintiff in these proceedings) in proceedings in that Court against the first defendant, and with respect to matter the subject of other proceedings in this Court.
At the last hearing of the application of the first defendant, the solicitor for the plaintiff brought an application for the plaintiff. I will return to that application at the end of these reasons.
The application by the first defendant was brought by her in person, and as filed is not altogether easy to follow.
Thus it is necessary, at the outset, to provide some background to the application, and then to set out the terms of the application, as filed, in full, before addressing the issues it raises.

Background

This account is drawn, both from the judgment of Jenkins J which her orders followed, and from the affidavit of the first defendant sworn and filed 20 March 2007 (the first defendant's affidavit of 20 March 2007). Unless otherwise indicated, the account is drawn from the first source.
For reasons which will appear shortly, I did not receive any material from the plaintiff until the first day of the hearing. I then received an affidavit of David Gerald Taylor sworn 29 March 2007 (the Taylor affidavit of 29 March 2007). Taylor deposed that he was the solicitor on the record for the plaintiff. I will have occasion to refer to the Taylor affidavit of 29 March 2007 below.
The first defendant is the registered proprietor of at least two parcels of land.
One parcel of land is situated at 169 Hazelmere Circus, Hazelmere. It is described Lot 126 on Plan 4553 and being the whole of the land comprised in Certificate of Title, Vol 1048, Folio 795 (the Hazelmere Land).
The other parcel of land is situated at 86 Grosvenor Road, Mount Lawley. It is described as Lot 228 on deposited plan 32583 and being the whole of the land comprised in Certificate of Title, Vol 1696, Folio 880 (the Mount Lawley Land).
I refer to the Hazelmere Land and the Mount Lawley Land together as the Lands.
Jenkins J's orders followed her reasons for judgment in Spunter Pty Ltd v Hall [2006] WASC 6, delivered on 20 January 2006. That decision was on the application by the plaintiff, on motion, for extension of two caveats. However, I note that her Honour also referred to an application and an amended application by the first defendant to set aside one of the interim orders to extend the operation of the caveats made earlier by other officers of the Court. She concluded, for the reasons given in her judgment at [5], that the application of the first defendant before her in its original and in its amended form was irrelevant and ought to be dismissed, and I have concluded I need say no more about that application.
The caveats were caveat No I186053, over the Hazelmere Land, and caveat No I186052, over the Mount Lawley Land (the Caveats). The application on which her Honour made her orders extending the Caveats was treated by her Honour as one made under Transfer of Land Act 1893 (WA) s 138C.
In her decision in Spunter, Jenkins J indicates that before her the plaintiff had relied upon a deed, purportedly between the plaintiff, a director of the plaintiff and his wife, and the first defendant, as creating the plaintiff's caveatable interest in each case. (I will henceforth call this the Second Deed, for reasons which will shortly become apparent.)
The director of the plaintiff in question was a Maurice Law (Mr Law), and his wife was Cheryl Law (Mrs Law).
The Second Deed contained four operative provisions, cl 1, cl 2, cl 3 and, underneath the execution clause, a written request from the plaintiff.
The Second Deed, cl 1, contained an undertaking by the first defendant to pay the plaintiff
The whole of the money borrowed from Spunter Pty Ltd ACN 002 179 375 [Maurice and Cheryl Law guarantors] plus interest at ten percentum per annum and/or according to any variation within the primary "Law" loan arrangements. Plus all outgoings, and expenses and a remuneration to be agreed in relation to the setting up and ongoing maintenance of the said fundings.
The 'primary "Law" loan arrangements' appear to be those under a deed whose contents were deposed to by M Law in his affidavit sworn 14 February 2005 before her Honour. The date of execution of that deed does not appear from her reasons.
That deed (the First Deed) referred to an advance the plaintiff and Mr and Mrs Law had agreed to make to the first defendant to enable her to repay a debt to a third party. The First Deed also referred to assistance the plaintiff and Mr and Mrs Law had agreed to provide to the first defendant to fund litigation seeking compensation for losses from a fire at the former premises of the first defendant. The plaintiff had borrowed funds from a bank to fund to enable it to perform its promises under the First Deed. Mr and Mrs Law guaranteed that borrowing.
Under the First Deed, the first defendant agreed to indemnify and repay to the plaintiff and Mr and Mrs Law:
•all of the costs and expenses incurred by them in obtaining and effecting settlement of the borrowing,
•all interest, costs and charges imposed by the bank during the term of the loan on all of the monies advanced to the first defendant by the plaintiff and Mr and Mrs Law,
•all costs and expenses incurred by the plaintiff and Mr and Mrs Law in effecting discharge of the borrowing, and
•all costs and expenses incurred by the plaintiff and Mr and Mrs Law 'in the preparation, stamping and lodging of this Agreement'.
The First Deed also contained a cl 2, which was described by Jenkins J (in Spunter, at [8]) as follows:
Clause 2 of the first deed provides that the first defendant would authorise the plaintiff and Mr and Mrs Law to pay accounts incurred by her in pursuing her claim for compensation for losses occasioned by the fire. Upon receipt of such authorisation the plaintiff and Mr and Mrs Law were to make such payments from the bank loan.
Returning to the Second Deed, its cl 2 contained an authority by the first defendant for the '"Law" loan arrangement' to be 'repaid all money owed to it' by the first defendant:
… including funds already paid to Mr Graeme Harris and expenses … from the first and if necessary further money assigned to me from whatever source to complete total repayment of all funds owed to the 'Law' loan arrangement as soon as practical.
The Second Deed, cl 3, was as follows:
Spunter Pty Ltd ACN 002 179 375 Maurice and Cheryl Hall, guarantors shall have first call on my estate.
Underneath the execution clause, and as described by Jenkins J (Spunter at [10]), there was a written request by the plaintiff for funds to be drawn down from the loan from the plaintiff and Mr and Mrs Law. Her Honour said she assumed that request 'was done pursuant to cl 2 of the [First Deed]'. I have previously set out her Honour's account of that clause.
The Second Deed bore a date of 1 November 2000, typed on it in its top left corner; it also bore the date of 4 November 2000, handwritten next to each signature on the deed. The caveats lodged at the office of the second defendant referred to a deed dated 1 November 2000, and the plaintiff said that, with the Caveats, it had lodged at that office a copy of the Second Deed, and four further deeds, each in the same terms but (Spunter at [11]) 'containing different requests for different payments by the [first defendant] underneath the execution clause'.
Jenkins J determined, in accordance with such authorities as Custom Credit Corp Ltd v Ravi Nominees Pty Ltd (1982) 8 WAR 42, that it was necessary for the plaintiff to satisfy the Court that there was a serious question to be tried, and that the balance of convenience favoured the retention of the caveats.
With respect to whether or not she was satisfied there was a serious question to be tried, Jenkins J considered whether or not there was such a question that an equitable charge had been created by cl 3 of the Second Deed. On such authorities as Composite Buyers Ltd v Soong (1995) 38 NSWLR 286 she concluded an equitable charge created a proprietary interest which could be protected by a caveat.
With respect to the question of whether or not cl 3 had created an equitable charge, Jenkins J, as I read her judgment, identified the issues of:
•whether or not cl 3 was meant to create a proprietary interest at all;
•if that is what it meant, whether or not cl 3 only meant that the plaintiff had a claim against the first defendant's estate in the event there was a debt outstanding at her death; and
•whether or not cl 3, if it purported to create an immediate equitable charge, was void for uncertainty, because it purported to give a claim against all of the first defendant's property.
Jenkins J concluded (at [28]) that there was a serious question to be tried that the Second Deed had created an equitable charge in respect of the caveated lands, while stressing there were factual and legal issues to be resolved at the trial of that question.
With respect to whether or not she was satisfied that the balance of convenience favoured the retention of the caveats, Jenkins J considered the submission of the first defendant that the presence of the caveats had prevented her from obtaining funds to, among other things, enable her to instruct a lawyer to act for her in respect of a default judgment against her and other matters.
The default judgment referred to (the default judgment), with respect to which the first defendant by her chamber summons before me also seeks relief, was obtained on 10 October 2002, in the District Court, by the plaintiff and Mr and Mrs Law.
The first defendant's affidavit of 20 March 2007 refers to the action in which the default judgment was obtained as District Court CIV 2509 of 2002.
In Spunter Jenkins J refers to the default judgment as follows (at [12]):
Mr Law deposes that monies were advanced to the first defendant pursuant to the deeds and that the first defendant has not repaid any of the outstanding money. The exact amount of money advanced is not in evidence before me. What is in evidence is that on 10 October 2002, the plaintiff and Mr and Mrs Law obtained default judgment in the District Court against the first defendant in respect to outstanding amounts owed to the plaintiff. The default judgment is for $144,871.47 plus interest and costs. The first defendant has made a number of unsuccessful applications to set aside the default judgment. In a letter sent to the Court by the first defendant on 2 March 2005 she acknowledges that she received several sums of money from the plaintiff and Mr and Mrs Law. Her counsel told me that the amount owed by the first defendant was in dispute.
I did not have the file for District Court CIV 2509 of 2002 before me. There is, however, a history of the proceedings, although not a description of their nature, to be found in the judgment of Grover DCJ in Law v Hall [2005] WADC 75. That was his Honour's judgment dismissing the application by the first defendant in these proceedings to have the default judgment set aside. As will become apparent, this was a judgment on one of four applications made by the first defendant to have the default judgment set aside in the District Court.
I have an account of steps taken by the first defendant in the District Court in relation to the default judgment in the Taylor affidavit of 29 March 2007, which annexes copies of filings made in the proceedings in District Court CIV 2509 of 2002. What follows is taken from that account.
By chambers summons dated 1 March 2005 the first defendant applied to have the default judgment set aside. On 8 March 2005 at a hearing at which only counsel for the plaintiffs in District Court CIV 2509 of 2002 was present Deputy Registrar Hewitt of that Court ordered the first defendant's application be adjourned sine die. On 18 March 2005 also at a hearing at which only counsel for the plaintiffs was present Deputy Registrar Harman ordered that the first defendant's application be dismissed.
By chamber summons dated 18 March 2005, which was also the date of the hearing and orders of Deputy Registrar Harman just referred to, the first defendant again applied to have the default judgment set aside. By order made in Chambers on 1 April 2005 Groves DCJ dismissed that application, following his Honour's judgment in Law v Hall. From his judgment it would appear that the judgment was delivered extemporaneously at the end of the hearing on the same day, and that the plaintiffs were represented by counsel while the first defendant appeared in person.
By a document styled 'Interlocutory Application' the first defendant again applied to set aside the default judgment, although the first defendant's application is described in the document as 'an application on the part of [the first defendant] that the refusal of the Judge in chambers to set-aside the default judgment on the 1^st day of April, 2005 be heard again on the following grounds'. On 22 April 2005 at a hearing at which only counsel for the plaintiffs was present Sleight DCJ dismissed the application.
By a chambers summons dated 31 May 2005, the first defendant again applied to set aside the default judgment. On 21 June 2005 at a hearing at which counsel for the plaintiffs and counsel for the first defendant were present, Registrar Kingsley of the District Court dismissed the first defendant's application. In addition, by O 2 he ordered that:
Any further application to set aside judgment be by way of leave from a Judge of this Court.
I do not have any material in which the learned Registrar explained the source of his authority so to order, or his reasons for so doing, although the latter might be inferred from the history in the District Court I have described.
I return now to the judgment of Jenkins J in Spunter.
Jenkins J referred to copies of the certificates of title to the caveated land which showed encumbrances, in favour of the same mortgagee as counsel for the first defendant had indicated to her. While the first defendant was defending enforcement proceedings by that mortgagee her Honour said (at [32]):
Whatever the first defendant believes is the strength of her defence to those proceedings, there is no evidence before me which would warrant me concluding that it is the Caveats which are depriving the first defendant of the ability to obtain clear title to the caveated land.
Jenkins J also (at [34]) said this:
Further, it is apparent from the affidavit that the lender in respect to the proposed loan or loans intends to take a mortgage over at least the Hazelmere land as security for the loan or loans. I see no reason why the principal should receive priority of registration until the validity of the plaintiff's claim is determined.
Finally, her Honour referred to the following (at [35]):
The first defendant's counsel also made emotive submissions from the Bar table including, and to the effect, that if the Caveats are not lifted the first defendant "will be condemned forever and she will live as a neglected person for the rest of her life". There is no evidence before me to support this submission.
Jenkins J concluded (at [36]) that the balance of convenience favoured the extension of the caveats pending a final determination as to whether the Second Deed gave rise to an equitable charge over the caveated properties.
Jenkins J then went on to say this (at [36], [37]):
To date the plaintiff has not commenced proceedings to obtain such a determination. However it acknowledges that any order extending the caveat should be conditional on such proceedings. I agree and am only prepared to extend the Caveats on condition that the plaintiff institutes such proceedings and prosecutes them in a timely manner.
I will hear the parties as to final orders.
The final orders as extracted, and shown (by stamp of the Central Office of the Court) as filed on 10 February 2006, were as follows (the caveats extension orders):
1.The operation of Caveats I186052 and I186053 be extended until further order of the court on condition that the plaintiff commence proceedings within 21 days [of 20 January 2006] for the purpose of determining whether the plaintiff has an estate or interest in the caveated land.
2.Each party have liberty to apply on 7 days notice to the other parties.
3.The question of costs be adjourned sine die with liberty to the plaintiff to apply on 7 days notice.
It is not in contest before me that the 21 day period referred to expired on 10 February 2006.
Further, by a writ of summons dated 10 February 2006, and shown by what appears to be the stamp of the Central Office of the Court as filed on that date, the plaintiff and Mr and Mrs Law commenced action against the first defendant in these proceedings. That writ commenced CIV 1131 of 2006.
I note that there appears to be no contest that the writ was served after that date. However, it is the date of filing of the writ of summons, not the date of its service, that marks the commencement of an action: see O 4 r 4(1)(a).
It is also not in contest before me that the present proceedings, the question of the date of their commencement aside, were those called for by Jenkins J in Spunter at [36]. As will become apparent, the date of their commencement, as contended for by the first defendant, is one of the bases on which the first defendant seeks the withdrawal of the caveats.

By the indorsement of claim on the writ, the plaintiff claims declarations in the following terms:
1.The land described on duplicate certificate of title Volume 1537 Folio 275, otherwise known as the Colliefields Hotel and located at 91 Throssell Street, Collie, Western Australia, (the "Hotel") forms part of the estate of the [First defendant].
2.Agreements described as deeds and dated 5^th October 2000 and 4^th November 2000, between the plaintiffs and the defendant (the "Deeds"), confer on the plaintiffs an interest in equity in the land described on duplicate certificates of title Volume 1048 Folio 795 located at 169 Hazelmere Circus, Hazelmere, Western Australia and Volume 1696 Folio 880 located at 86 Grosvenor Road, Mt Lawley, Western Australia, (the "Titles").
3.The Deeds confer on the plaintiffs an equitable interest in all of the estate, being real and personal property, of the [first defendant].
4.The Deeds create a caveatable interest supporting [the Caveats] and create a caveatable interest in the land described on the Titles, together with the Hotel and that these caveats remain until further order of the Court.
On 14 March 2006, a memorandum of appearance in CIV 1131 of 2006 was filed for the first defendant. She was there shown as legally represented. On 11 May 2006 a notice of that solicitor having ceased to act was filed. On 3 November 2006 a notice of the first defendant's intention to act in person was filed.
On 21 June 2006, following case management orders of Registrar Powell dated 12 June 2006, a statement of claim was filed. The case management orders had called for the statement of claim to be filed and served by 19 June 2006.
The statement of claim pleads, among other things, certain contents of the first and the Second Deeds. The prayer for relief includes the following:
A.An order or declaration that the Second Agreement confers on [the plaintiff] an interest in equity in [Hazelmere Land and the Mount Lawley Land] as equitable chargee.
B.An order or declaration to the effect that the Second Agreement to the extent of any monies unpaid by [the first defendant] to [the plaintiff], confers on [the plaintiff] an equitable interest in all of the estate, real and personal, of [the first defendant].
…
C.An order or declaration that the Second Agreement creates an interest in the Land.
D.An order or declaration that the Second Agreement creates an interest in all of the estate, real and personal, of [the first defendant].
The case management orders, by par 2, also called for a defence and any counterclaim to be filed and served by 17 July 2006, as well as providing for other programming matters.
On 4 September 2006 the first defendant filed an affidavit in CIV 1131 of 2006 and bearing the title
AFFIDAVIT FILED IN SUPPORT CHAMBER SUMMONS TO SET ASIDE THE ORDER OF JUSTICE JENKINS EXTENDING OPERATION OF CAVEAT GIVEN ON THE 20^TH DAY OF JANUARY 2006.
I note that this is the same title as that of the first defendant's affidavit of 20 March 2007. The two affidavits have very similar but not identical content. I will return to one point of difference below. However, there is, in the file for CIV 1131 of 2006, no chambers summons of the sort referred to in the affidavit in that file just referred to.
On 26 February 2007, case management orders were made by Registrar Powell. The first of those orders was that, unless by 23 April 2007 the first defendant complied with par 2 of the order dated 12 June 2006 (with respect to filing and serving a defence and any counterclaim) 'the plaintiffs have leave to move for judgment as claimed in the statement of claim'.
There was no further filing in CIV 1131 of 2006 in the file for that action before me by the end of the hearing of 24 May 2007.

The application before me

The present application was brought by chamber summons bearing a date of document 'August 2006' but a file stamp of 23 March 2007.
The chamber summons was originally shown as brought in CIV 1131 of 2006, but was amended so that it was brought in the present proceedings.
The application is shown as prepared by the first defendant herself and is a prayer for the following principal orders:
1)That [the Caveats] lodged against [the Hazelmere Land] and [the Mount Lawley Land] belonging to the first defendant by [the plaintiff] and further caveats he subsequently lodged (the caveator), be withdrawn immediately on the following grounds:
(a)[The plaintiff] did not comply with the judgment order of Justice Jenkins in Civ 1142 of 2005 dated the 20^th day of January, 2006, in that he did not file a Supreme Court action for an equitable claim against the first defendant's land within the 21 day stipulated period i.e. on the 10^th day of February, 2006.
(b)The plaintiffs [in CIV 1131 of 2006] did file Civ 1131 of 2006 claiming an equitable right over the lands of [the first defendant] under the caveats of [the first plaintiff] only after the 10^th day of February, 2006 and did manage to produce a Writ of Summons with a date stamped on it indicating that it was filed on the 10^th day of January, 2006 when it was not.
(c)The first defendant alleges that [the plaintiff] perjured in the proceedings of the Civil Action 2509 of 2002 in the District Court at Perth in relation to matters relating to Tony Daniels and in matters to his claim against the first defendant that was set out in the previous court actions.
(d)The DEED which forms the basis of the plaintiffs claim against the first defendant and has the word 'unsecured' on it was never the deed of the first defendant.
…
3)The execution of the judgment order in the District Court of Civ 2509 of 2002 BE STAYED and the default judgment order be SET ASIDE.
There are a number of matters in the prayer for relief that are not made clear in the first defendant's affidavit of 20 March 2007.
The 'further caveats' referred to are not further described.
The 'matters relating to "Tony Daniels"' and 'matters to his claim against the first defendant that was set out in the previous court actions' are not explained. However, it appears, from the affidavit of the first defendant in these proceedings sworn 6 April 2005 (the affidavit of the first defendant of 6 April 2005), annexure 'A', at 4, that Mr Daniels is a person in respect of whom that affidavit says 'the various sums which the plaintiffs are claiming from me have already been paid by him'. Annexure 'A' is an affidavit with annexures in District Court CIV 2509 of 2002. The first defendant explained to me, as I understood her, that the effect of these matters was that monies were paid to Mr Daniels which he repaid, with a credit to the first defendant. I take it these matters are what '(c)', above, refers to.
The 'DEED' referred to is not explained. The pleadings in CIV 1131 of 2006 refer to both the First Deed and the Second Deed, and neither appears to use the word 'unsecured', although, as I have indicated, the Second Deed does use 'secured'. However, at the hearing before me my attention was drawn to an affidavit of the first defendant in CIV 1142 of 2005, sworn 5 July 2005, in support of the application of the first defendant to set aside one of the interim orders extending the caveats, an application to which I referred earlier. Without objection from counsel for the plaintiff, I permitted the first defendant to draw my attention to the annexures 'NCH‑1‑1' and 'NCH‑5‑1' to that affidavit. Those annexures made it clear that the 'DEED' was in fact the First Deed. I understood from the first defendant that the word 'unsecured' appears on a copy of the First Deed provided to the District Court for the purposes of the District Court action CIV 2509 of 2002.
Unlike the Daniels matter, it does not appear that any evidence as to the Deed not being that of the first defendant was in the file for CIV 1142 of 2005 at the time of the hearing before Jenkins J. However, the first defendant informed me at the hearing of 24 May 2007 that she had pressed the matter of the forging of her signature on the First Deed on Jenkins J at that hearing.
It is reasonably evident from the present application that it raises at least three distinct issues. They are the effect of the caveats extension orders in the circumstances; the first defendant's allegations with respect to the Daniels matters and the 'DEED'; and the first defendant's allegations with respect to the default judgment[rls1] . Shortly I will indicate that there is a further issue raised, which emerged at the hearing of the application, on 29 March 2007.
On 23 March 2007, the first defendant's application first came on for hearing, ex parte and on an urgent basis, before Hasluck J as duty judge of this court. His Honour adjourned the proceedings to the hearing before me, so that the other parties to these proceedings could be served. The other parties are the plaintiff and the second defendant. His Honour referred, however, to Mr and Mrs Hall, who are parties to CIV 1131 of 2006, but not to these proceedings.
I note the certificate of urgency for the purposes of the hearing before Hasluck J, which it seemed to me raised a further issue to the three I have previously listed. That matter was the balance of convenience. The first defendant referred to matters of 'bills', the costs of a solicitor, 'access', 'transport' and 'specific medical expenses', for which the certificate indicated she had a pressing need for funds.
At the initial hearing of the application before me, on 29 March 2007, at which the first defendant represented herself, and the plaintiff was represented by its solicitor, I raised these matters with the parties. The first defendant did not indicate that any of them represented any type of item not present at the time of the application before Jenkins J. The first defendant had put all of them to her Honour. However, the amounts involved, at least for some, were now significantly larger, by the effluxion of time[MSOffice2] , and the need was at least as pressing.
It became apparent at that initial hearing before me that the first defendant believed she had access to funds to meet the amounts concerned, from a lender who would provide them but only on the security of the Hazelmere or the Mount Lawley Lands, or both, with the title as it currently was, including the mortgage registered on the titles to the lands to which Jenkins J in Spunter makes reference, above. However, such lender would not provide the funds so long as the caveats remained. The caveats, as I understand them, would prevent the registration of any such subsequent security, at least unless that security was subject to the interest the caveat sought to protect.
It seemed to me that this represented matter not before, or not clearly before Jenkins J, possibly because of a change of circumstances. Her Honour had indicated that enforcement proceedings had been commenced by the mortgagee, which the first defendant indicated were being defended. Her Honour also indicated there was no evidence before her indicating that it was the caveats preventing the first defendant from obtaining 'clear title' to the Lands been: Spunter Jenkins J, at [32]. However, it does not seem to me to be clear her Honour had been addressed on the matter of any funds being available on the security of the Lands even although the mortgage had been left in place on the titles, and with the mortgagee enforcing the mortgage. I reach the state of those mortgage enforcement proceedings as it was described to me below.
In any event, it seemed to me that the first defendant should have an opportunity to put on affidavit evidence of the matter of the availability to her of funds from lenders prepared to accept the security of an encumbered title, provided that the caveats were removed. I will return to this matter below.
Returning to the outcome of the hearing before Hasluck J, it appears, from the Taylor affidavit of 29 March 2007, that, on 27 March 2007, the first defendant served the solicitors for the plaintiff with three documents. They were the associate's record of the hearing before Hasluck J, the chamber summons for the present application and the first defendant's affidavit of 20 March 2007.
I do not have any indication of service of any papers in these proceedings on the second defendant. However, I have on the file in CIV 1142 of 2005 a notice for him that he does not wish to participate in the action and will abide its outcome[rls3] .

The hearings before me

As I have indicated, the matter first came before me on 29 March 2007. The first defendant represented herself, while the plaintiff was represented by a solicitor.
At the conclusion of the hearing that day, I adjourned the hearing to permit the further affidavit evidence to be filed and served, on two matters.
One matter, which I have previously referred to, was that of the first defendant's ability to raise funds on the security of the Hazelmere land and the Mount Lawley land notwithstanding the mortgages on them. The other was the date of the filing of the writ of summons in CIV 1131 of 2006.
In the event, I made the following orders at the hearing of 2 March 2007. These orders have not been extracted; however, as shown in my associate's civil record, which was provided to the parties, they were:
Hearing adjourned on the following terms:
1.First defendant have 14 days to file and serve such affidavit or affidavits as she sees fit addressed to either or both of the following issues and these only:
(a)the date of filing of the Writ of Summons in CIV 1131 of 2006; and
(b)the preparedness of a lender to advance the first defendant funds on the security of the Hazlemere Land or the Mount Lawley Land or both on the existing state of the title including any encumbrance currently registered on that title, such advance on such security only to be made if the caveats or at least one of them were withdrawn.
2.Plaintiff have 7 days after the last such affidavit is filed and served to file and serve any responsive affidavit or affidavits.
3.After the filing and service of the last such affidavit in Order 2 or 7 days have expired as referred to in Order 2, whichever occurs first, the matter be relisted on the application of either party.
4.Failing any such affidavit in Order 1, judgment on the application is reserved.
5.Costs of today reserved.
I should add that, in my handwritten notes in the record of orders made, which are otherwise identical to this record, no mention is made of the 14 day period in order 1; however, my notes of the hearing in my bench book refer to the 14 days, and, as I have indicated, the parties were informed of the orders in those terms.
The matter came back before me on 22 May 2007 with a further affidavit from the first defendant sworn 11 April 2007. That affidavit had been filed. However, the first defendant did not appear. She informed my associate from Collie that she had recently had medical difficulties and was unable to attend.
The plaintiff's solicitor appeared to indicate to me that he wished to make application for a declaration he had ceased to act for the plaintiff, pursuant to O 8 r 7(1). I was shown two documents entitled 'Application to Case Management Registrar', in both CIV 1142 of 2005 and CIV 1131 of 2006, which in the same terms sought orders that the solicitor have ceased acting for the plaintiff in both actions.
I was also shown two draft affidavits from that solicitor, which I was told could be sworn and filed shortly.
One draft affidavit was in support of the application (the first draft Taylor affidavit). It stated that on or about 3 November 2006 the deponent ceased to act for Mr and Mrs Hall, the first and second plaintiffs in CIV 1131 of 2006. However, the deponent remained 'on the record for the company Spunter Pty Ltd'. However, 'the plaintiff, through Mr Law, a director the plaintiff, has now instructed the deponent that he is to cease acting for the plaintiff'. A document entitled 'Notice of Change of Solicitor' in CIV 1131 of 2006 annexed to the affidavit is said to have been filed, although the document does not specify any new solicitor, and there was no evidence before me as to the service of the document for the purposes of O 8 r 2(1). In any event there is no such document for the purposes of CIV 1142 of 2005.
The other draft affidavit related to the way in which the solicitor had become aware of the first defendant's affidavit of 11 April 2007, as well as other matters (the second draft Taylor affidavit), and I return to that affidavit in those respects shortly.
At the hearing I considered that I would be in a position to exercise my discretion to make the order sought by the solicitor, provided a formal application by summons had been made and served on the plaintiff as O 8 r 7 required in the absence of other order. I was told that the two 'Notice' documents had been provided to Mr Hall, as a director of the plaintiff. However, in my view such service is not service on the plaintiff for the purposes of O 8 r 7, which in my view requires service at a company's registered office.
Accordingly, I adjourned the hearing before me to permit the solicitor to serve a summons as O 8 r 7 required with the necessary supporting affidavit. This would also permit the plaintiff to seek other legal representation. I drew the attention of the solicitor and his client to Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd (2000) 22 WAR 372, Hasluck J, in which his Honour considers the circumstances in which, consistently with O 4 r 3 and O 12 r 1(2), a company may appear by a person other than a legal practitioner.
In making that order, I also took account of the absence of the first defendant, and her indication, in her communication with my associate previously referred to, that she would not object to an adjournment, but only to a hearing on a date no later than 24 May 2007.
In making that order I also noted the material in the second draft affidavit of the solicitor concerning how he came to know of the first defendant's affidavit of 11 April 2007. I considered that at the adjourned hearing the first defendant and the plaintiff could address me on the matter of compliance with my orders made on 29 March 2007 to which I have previously referred.
In particular, as will have been seen, those orders allowed the first defendant to file and serve any further affidavit material on either or both of the two issues referred to.
At the hearing on 24 May 2007, the parties would have the opportunity to address me on whether or not any affidavit of the first defendant had been filed and served as my orders allowed for.
At the hearing on 24 May 2007, the first defendant appeared, together with the plaintiff's solicitor. The latter indicated he would not be seeking an order in respect of ceasing to act until the conclusion of submissions on the first defendant's application, so that he could continue to represent his client for that purpose.
In the event he sought a further order, as I will indicate.
The first defendant referred in the hearing, both to the first defendant's affidavit of 20 March 2007 and to her affidavit, filed in support of what became the present application, but filed for CIV 1131 of 2006, and sworn 31 August 2006 (the first defendant's affidavit of 31 August 2006).
There was also on the file for CIV 1142 of 2005 an affidavit of the first defendant of 11 April 2007 (the first defendant's affidavit of 11 April 2007). During the hearing it became evident the first defendant wished to make reference to that affidavit. There was, however, no evidence before me by way of affidavit that the [rls4] first defendant's affidavit of 11 April 2007 had been served as required by my orders on 11 April 2007. The first defendant from the Bar table referred to the fact she had, on the day the affidavit had been filed, 11 April 2007, taken a copy of the affidavit to Midland where the offices of the plaintiff's solicitor were located. Finding no one there, she had left the affidavit with a person who indicated she could get the affidavit to the offices of the solicitor, pursuant to an arrangement or practice among those with offices in the same building or area. I do not consider that to be service in compliance with my orders. However, my associate provided the solicitor with a copy on or about 2 May 2007. In turn the solicitor had prepared an affidavit in draft form to which he indicate he wished to speak at the hearing and which responded to a part of the first defendant's affidavit. This as I understand it was the second draft Taylor affidavit[rls5] .

In the event I concluded that, while there had been no service on the solicitor for the plaintiff, there was no prejudice to the plaintiff in receiving the first defendant's affidavit of 11 April 2007 into evidence in the hearing. This was given the provision of the affidavit to the plaintiff's solicitor as I have indicated, and the opportunity, of which the plaintiff was in a position to take advantage, to provide a responsive (draft) affidavit.
At the same time, I indicated the second draft Taylor affidavit, which had not been previously provided to the first defendant, should be provided to her, and she should have an opportunity to digest its contents before the plaintiff's solicitors had an opportunity to address me on it, and the first defendant have an opportunity to reply. I allowed a short adjournment for this purpose.
In the event there was before me the following evidence:
•The first defendant's affidavit of 31 August 2006;
•The first defendant's affidavit of 20 March 2007;
•The first defendant's affidavit of 11 April 2007;
•The Taylor affidavit of 29 March 2007;
•The first draft Taylor affidavit;
•The second draft Taylor affidavit; and
•The Court's file copy of the writ of summons in CIV 1131 of 2006.
I considered that the two draft Taylor affidavits could properly be considered on the basis of the solicitor's undertaking to have them sworn, filed and served.

The issues before me

I consider that on the first defendant's application and the matters that arose at the hearings before me, there are the following four issues before me:
1.The effect of the caveat extension orders of Jenkins J: as I will explain, even if I am satisfied the orders came into effect, it is arguable the present application could be regarded as brought pursuant to the liberty to seek a further order, on new evidence or changed circumstances;
2.The matter of the first defendant's allegations as to the First Deed and as to payments made by Mr Daniels;
3.The matter of the ability of the first defendant to raise funds on the security of the Hazelmere land and the Mount Lawley land; and
4.The matter of the default judgment[rls6] .
I turn now to consider those issues.

The effect of the caveats extension orders

It seems to me that the caveat extension orders by their terms are conditional on the filing of the writ of summons for what became CIV 1131 of 2006 by the close of business 10 February 2006. The evidence on this account before me at the initial hearing, on 29 March 2007, was in the first defendant's affidavit of 20 March 2007[rls7] , the Taylor affidavit of 29 March 2007 and the file copy of the writ of summons.
Before referring to that evidence, and certain other evidence provided after the hearing, I note that the former solicitor for the first defendant offered to give oral evidence in relation to the matter. There had been no indication in the papers for the hearing before me that the first defendant would seek to have that evidence adduced. I considered it was not appropriate she adduce such evidence, in view of the orders I made at the end of that hearing, above. Those orders allowed for the filing of an affidavit by the former solicitor on this matter.
I turn now to the evidence before me at the hearing of 24 May 2007 relevant to the present issue. That evidence was:
•The first defendant's affidavit of 20 March 2007;
•The first defendant's affidavit of 11 April 2007;
•The Taylor affidavit of 29 March 2007; and
•The Court's file copy of the writ of summons in CIV 1131 of 2006.
In addition, I had the affidavit of the first defendant sworn on 31 August 2006 in support of the application to set aside the order of Jenkins J extending the operation of the caveats. That affidavit was filed in CIV 1131 of 2006, as I have previously indicated.
I note that the first defendant's affidavit of 20 March 2007 (par 2) states that the first defendant was present in the Central Office of the Supreme Court waiting:
For the Civ 1131 of 2006 to be filed by the plaintiffs in accordance with the order of Justice Jenkins given on the 20^th day of January 2006. I waited until 4.30 p.m. which was long after closing time and the Civ 1131 of 2006 is definitely not filed on that day.
In the first defendant's affidavit of 11 April 2007 ([6]) she states:
On the 13^th day of February 2006 (my eldest brother's birthday) I spent all day at the Supreme Court building in close watch for a last minute filing but there was no filing at all that day for CIV 1131 of 2006 it was reported to me at closing time.
I note in passing that the account for 13 February 2006 does not sit well with the statement in the first defendant's affidavit of 31 August 2006 ([1c]) as follows:
On the next working day, the 13^th day of February 2006, I was at the Central Office of the Supreme Court in the morning and was told there was none again. I went back at 3.30 p.m. that afternoon and Angelina showed me that the Writ had arrived, but there was the date 10^th February, 2006 stamped on it. I asked Angelina "how does that date get there?" She said it is just there or something like that. I do remember it was a female who told me that "sometimes they do it afterwards".
It is not clear from the affidavit who the 'Angelina' referred to is. However, there is no reference to any such conversation in the first defendant's affidavit of 20 March 2007 or 11 April 2007.
Further, I note the somewhat equivocal character of the response she received, which in my view does not exclude the possibility that the writ of summons had indeed been filed and stamped on 10 February 2007.
Against the evidence of the first defendant is the appearance of the Court's file copy of the writ of summons in CIV 1131 of 2006. That copy bears both the seal of the Court and the date stamp, 'FILED 10 FEB 2006 CENTRAL OFFICE SUPREME COURT'. Handwritten elsewhere on the writ of summons is '10/2', initials, and the same dollar amount as the payment account which I reach shortly.
I should note that in my view the date of affixing of the stamp is not the decisive matter. Rather, it is the date on which the document was accepted for filing. In practice, however, it seems unlikely there will be a difference. That is because the return to a filer of a stamped copy of a filed document, together with a receipt for fees paid (as appears in this case, from the Taylor affidavit of 29 March 2007: see below) would be expected to occur at the point of acceptance for filing.
The writ of summons is, of course, a public document: O 67 r 11(1)(a). Thus I may take it as 'sufficient proof of every particular stated in it': Cross on Evidence, 7th Aust ed, at [33345].
However, other evidence may show that such proof is not sufficient to establish a fact in issue, such as the date of filing. I have already referred to the evidence of the first defendant.
However, apart from the writ of summons, there is also the evidence in the Taylor affidavit of 29 March 2007 (par 15 and par 16), referring to his 'inspection of the file', and 'my copy of the writ of summons … stamped 10^th February 2006', and annexing 'outside clerk filing instructions, and the document from the Supreme Court 'Payment Account' showing an 'Account Date' of '10/02/2006', the deponent as 'Payer', and the entry 'SC/CIV/PER/CIV/1131/2006 – LAW V HALL – Writ of Summons' with the amount $654.20.
On balance I am satisfied on the balance of probabilities that the writ of summons in CIV 1131 of 2006 was indeed filed on 10 February 2006, the last day allowed for the commencement of that action[rls8] in the orders of Jenkins J. It seems to me that the evidence of the first defendant lacks the specificity that would be required to counter the evidence that the writ of summons was filed on that date. In particular, I do not consider the first defendant's recall of the comprehensiveness of her watch for a filing on 10 February, her references to the persons with whom she spoke then, and the somewhat equivocal character of what she learnt on 13 February 2007 (if I believe the account in her 31 August 2006 affidavit rather than that in her 11 April 2007 one) to be sufficient for that purpose.
However, in my view that does not end the matter. True it is that it is the Court of Appeal, not a Judge in my position, that of a Judge of the General Division of the Court, that has jurisdiction to entertain appeals from a decision of another judge of the General Division. See Supreme Court Act (1935) (WA), s 7(4) read with s 58(1)(b). However, Jenkins J's orders were subject to 'further order'. In my view, such 'further order' might be made if it were shown that there had been a material change in circumstances since the orders were made, or new evidence had come to light[rls9] , relevant to the serious case to be tried or the balance of convenience.
The matter of the first defendant's evidence with respect to the 'DEED' would be relevant to the serious question to be tried in relation to the extension of the caveats, and might be considered in that light if it was new evidence that had come light since the hearing before Jenkins J. I will indicate, however, that it does not have the character of such evidence. I will further indicate that the same can be said, in all of these respects, of the evidence as to the Daniels matters.
The matter of the first defendant's evidence with respect to her ability to raise funds on the security of the lands would be relevant to the balance of convenience in relation to the extension of the caveats. It is clear to me that this evidence is of changed circumstances since her Honour's orders were made.
I turn to each of those matters.

The first defendant's evidence with respect to the 'DEED' and the Daniels matters

That evidence with respect to the 'DEED' is in the first defendant's affidavit of 20 March 2007 ([7]) and is as follows:
… I was never liable for those debts that were stipulated in the DEED which I never signed but my signature obtained elsewhere was fraudulently superimposed on the DEED to make it appear that I signed it.
I have already referred to the evidence I have of the 'DEED', in an earlier affidavit of the first defendant in the present action. The 'DEED', which as I have indicated appears to be the 'First Deed', is a document that appears to be regular on its face. It is evident Jenkins J in Spunter so treated it.
The first defendant's allegations are, of course, of a serious nature. However, they are based on evidence that clearly was available at the time of the hearing before Jenkins J, and, as the first defendant freely conceded to me, was put to her. The allegations and the evidence in support of them are not it seems to me matters which fall for me to consider on this application. To do so would involve me in acting by way of review of her Honour's decision. As I have already indicated, the jurisdiction to review her decision lies, not with a judge of the General Division, but with the Court of Appeal.
The evidence with respect to the Daniels matters is in the affidavit of the first defendant of 6 April 2005, as I have previously indicated.
To the extent the Daniels matters go to the matter of whether or not there was a caveatable interest, they, like the matters relating to 'the DEED', represent matters that were available to be put before her Honour, and, as I understand it from the first defendant, were put before her, in the same way.
As I will indicate, the Daniels matters may also go to the default judgment, and I will return to those matters in that context.

The matter of the first defendant's ability to raise funds on the lands

The evidence with respect to this matter is only in the first defendant's affidavit of 1 April 2007. There (par 8) the deponent refers to four named entities which she deposes are prepared:
… to advance the first defendant funds on the security of the Hazelmere land or the Mount Lawley land or both on the existing state of the title, such advance on such security only to be made if the caveats or at least one of them were withdrawn.
I am prepared to find that this is a change of circumstance since the orders of Jenkins J. Further, this goes to the balance of convenience, against the extension of the caveats. I have already referred to the matters to which the first defendant would seek to apply the funds, as described in her certificate of urgency. However, I have also noted that I do not have any indication that any of the classes of matters concerned were not before Jenkins J, and indeed I understand from the first defendant the contrary was the case.
I am prepared also to conclude that the need for the amounts presently involved is likely greater now, by effluxion of time, than it was at the time of the hearing before Jenkins J in Spunter, although I note that I have no evidence of the extent of that greater need, nor of the other sources the first defendant may have available to her to meet it. The first defendant strongly put to me that the need was considerable, covering the full range of matters referred to in the certificate of urgency I have referred to, up to the full extent of the largest amount referred to as being available from a lender in the first defendant's affidavit of 11 April 2007.
However, I note that there is strong evidence to counter the evidence from the first defendant with respect to the availability of funds on the lands with their mortgages remaining. It is in the second draft Taylor affidavit. In that affidavit he indicates he made efforts to contact representatives of two of the lenders referred to in the affidavit of the first defendant of 11 April 2007. He was able to speak to the representative of one of the lenders, who is also identified in that affidavit. The representative is a Mr Hand. In the second draft Taylor affidavit, the following appears (at [8]):
I then advised Mr Hand that in another action (CIV 2073 of 2003) that judgement had been given against the first defendant in a mortgagee's action.
I indicate at this point that the judgment is Hall v Hall [2007] WASC 34, Jenkins J, delivered on 19 February 2007.
The second draft Taylor affidavit continues (at [8], [9] and [11]):
As appears from that judgment the sums awarded were $374,000.00 plus interest at 15% from 1994. In my view that gave rise to a debt of around $1.2 million. I then advised Mr Hand that I had spoken to Mr Anthony Prime, a solicitor from McCallum Donovan and Sweeney, earlier that day, and he advised that he acted for the plaintiff (being one Audrey Frances Hall as executrix of the Will of Kenneth Duncan Hall) in CIV 2073. The matters were relevantly a claim for possession of the Mt Lawley property and the Hazelmere property secured by mortgage in favour of the deceased and accordingly the estate. The facts and the decision can be seen in the reasons delivered 19^th February 2007 [Hall]. Mr Prime further advised that immediately after judgement that a minute of proposed orders was handed to her Honour Justice Jenkins and that the judgement sum was fixed, at as I recall $2.3 million, inclusive of interest with 28 days to pay. I asked Mr Prime whether that was because interest was liquidated from time to time on the interest as well and he advised "yes".
Mr Prime advised, in response to a question of mine, that the judgement was not satisfied.
…
After discussing with Mr Hand, the judgement in CIV 2073 and relating the comments of Mr Prime, I asked Mr Hand whether a sum sufficient to clear the debt of $2.3 million would be forthcoming. He advised in words to the effect "no, and that finance would require the removal of the mortgages before finance would be provided"; and he said "based upon my knowledge of the values of the properties in Hazelmere and Mt Lawley, they have a value of around $1.3‑1.4 million. The Hazelmere property about $1 million and the Mt Lawley property about $350,000.00 as it is a small piece of land. Both properties have "destruction orders" on the buildings so the properties are valued at land value less the cots [sic] of removal of the buildings.
Annexure 'DGT‑1' to the second draft Taylor affidavit is a letter dated 9 May 2007 from McCallum, Donovan Sweeney to the solicitor for the plaintiff in which the letter's author confirms that McCallum Cameron and Sweeney has obtained judgment in the sum of $2,301,010.28 and:
… intends to exercise her power of sale in respect of he [sic] Mount Lawley and Hazelmere properties. Indications are that there will be a substantial shortfall upon the sale of those properties in the balance of the judgment sum payable to our client.
There is no other evidence as to the value of the equity in the lands, ignoring the interests presently the subject of the caveats, than (by implication) in the affidavit of the first defendant of 11 April 2007, with respect to the funds available to her on the security of that equity.
I asked the first defendant whether or not she agreed with the values put on the lands, both explicitly and implicitly in the McCallum Cameron and Sweeney letter, in the material quoted from the second draft Taylor affidavit. She indicated she considered at least the explicit figures too low, assuming a village development for the lands or at least one of them, went ahead after necessary zoning decisions for it, not yet applied for, were obtained. If for some reason that development did not go ahead, she was unable to say what value she would put on the lands.
I consider the evidence in the second Taylor affidavit, and especially that in the McCallum Donovan and Sweeney letter, to indicate that it is unlikely that in fact the lenders referred to in the affidavit of the first defendant of 11 April 2007 would make their decision to grant the first defendant funds based upon the availability to them of security over her equity in the lands ignoring the interests the subject of the caveats. I consider they would assess that equity as having negligible value.
I recognise, however, that the judgment in Hall appears to be presently under appeal. However, the difference between the position under that judgment and the uncertainty for a potential lender as to that position created by a pending appeal would not, in my view, on the evidence I have improve the position of the first defendant to a significant degree.
In any event, even if I were minded to find that there was a significant chance the lands even with the mortgages might represent the difference between the first defendant being able to raise the funds she seeks, and being unable to do so, I note that the authorities indicate that it would be an 'unusual' case in which, if a serious question to be tried as to a caveatable interest had been shown, the balance of convenience would tell against the maintenance of the caveat. I note in this regard Pindan Pty Ltd v Sunny's Redevelopment Pty Ltd [2001] WASC 104, Murray J: I particularly note the following, at [8] and [9]:
It follows in my opinion that the balance of convenience, in the sense in which that term is understood in relation to the grant or refusal of interlocutory injunctions, remains a factor to be considered. The leading authority in that regard, in my opinion, remains [Ravi]. In that case Owen J [at p 50], with whom Malcolm CJ and Walsh J agreed, held that although considerations of the balance of convenience would require to be taken into account:
"…it seems to me that interlocutory removal of a caveat where an arguable case as to the existence of the caveatable interest has been demonstrated, will be unusual. It is important to bear in mind the nature and purpose of a caveat under the Torrens System. By its very nature, a caveatable interest must be a proprietary interest in land. The purpose of the caveat is to restrain the registered proprietor from dealing with the land in a way which will defeat or derogate from the incidents attaching to that proprietary interest until the respective rights of the parties have been honoured (if there is agreement) or determined (if there is disagreement). In many cases, removal of the caveat will have the effect of destroying for all practical purposes, the benefit of the proprietary interest. For example, a creditor, having a specific security interest in land, will rank as an unsecured creditor once the property, the subject of the specific security, no longer exists. This will often be the result of removal of a caveat which permits the registered proprietor to sell the property free from any practical obligation to account to the secured creditor for the proceeds of sale."
In so holding his Honour applied the decision of Rowland J in Porter v McDonald [1984] WAR 271.
In my respectful opinion the same observations may be made about the application of the present s 138C(2), given that the order made by the court will not be one to remove the caveat, but one to defeat the statutory lapsing of the caveat under s 138B(1) by ordering its operation to be extended. The essential point remains that the demonstration of a caveatable interest will ordinarily secure the extension of the operation of the caveat unless it appears to be clear that it may be removed, perhaps in the context of the making of ancillary orders under s 138C(2)(c), in circumstances which do not sacrifice the security provided by the caveat to the caveator or, if that interest is to be sacrificed, that should only be done for good reason.

The only potentially relevant difference in the statutory context between s 137 and s 138B and s 138C may lie in the availability of the statutory right to compensation in s 140: as Barker J in His Grace Metropolitan Petar v Macedonian United Society of Western Australia Incorporated [2003] WASC 15, Barker J, at [34] noted, it is not clear that that provision applies to loss or damage arising from the extension, as opposed to the lodgement, of a caveat. See also Hooke v Holland [1984] WAR 16, Brinsden J, at 20. I do not consider that would affect the present point.
I do not consider it has been shown to me that this is an 'unusual' case.
I recognise that particular personal needs might cause the Court to do practical justice, as by allowing for a caveat to cease on terms that limit what can be raised on the security of the title, but otherwise restraining the registered proprietor from dealing inconsistently with the caveator's interest. See Powell v In de Braekt [2006] WASC 264, Blaxell J. However, as I understood the first defendant's position here, there was no question of any such limit or constraint being appropriate in this case. In that state of the matter, I am returned to the position described in the authorities.
I would accordingly not uphold this aspect of the application.

The first defendant's allegations with respect to the default judgment

I begin by noting a judge in my position, that of a judge of the General Division of the Supreme Court, has no jurisdiction to set aside a default judgment in the District Court. Such a judgment might, it seems to me, be set aside in two circumstances only. One is pursuant to the jurisdiction of the District Court, to which as I have said the first defendant has resorted on four previous occasions, to set aside such a judgment: see District Court of Western Australia Act 1969 (WA), s 87, and Rules of the Supreme Court O 13 r 10. The other is pursuant to the jurisdiction of the Court of Appeal to entertain an appeal by leave from a judgment of the District Court which is not a final judgment: District Court Act, s 80 read with s 79(1)(b). A default judgment is not a final judgment: Kendall & Curthoys, at [13.10.1].
The first defendant's affidavit of 20 March 2007 refers to a number of matters which might be raised by way defence to the proceedings in District Court CIV 2509 of 2002, as well as going to whether or not the default judgment was regularly obtained. The affidavit of the first defendant of 6 April 2005 with respect to the Daniels matters would appear to indicate they go to a defence she might raise as to at least part of the claim in that District Court action. Her later affidavit may also be addressing whether or not the dispositions of one or more of her applications in that Court to set aside the default judgment were in error.
She put strongly to me that the default judgment was[rls10] part of a pattern of defrauding her of certain assets and making false or exaggerated claims against her. She indicate her strong sense of disquiet that she appeared not to have had an opportunity to have these concerns of hers properly addressed by the legal system. She made this point in the present context, and in the context of the proceedings in Hall. At times she was unable to continue before me without great distress.
However, as I explained to her, the matter of setting aside the default judgments, because there was a defence on the merits or because the judgment was irregularly obtained (see Kendall and Curthoys, at [13.10.4] and [13.10.6], which would apply to the position in the District Court), is a matter for ventilation in the District Court, not before me. Also as I explained, the matter of an appeal against a decision not to set aside a default judgment of the District Court was to be directed to the Court of Appeal, and not to me. It was in those fora that she should seek her opportunity to raise her concerns to the extent they were relevant to the default judgment of the District Court in CIV 2509 of 2003.
It follows, in my view, that I have no jurisdiction to entertain this part of the first defendant's application, which must accordingly be dismissed.

Conclusions and orders on the first defendant's application

It follows that I would dismiss the application of the first defendant. I will return below to the costs order I should make.

The applications for the plaintiff

At the hearing before me[MSOffice11] on 24 May 2007, the solicitor for the plaintiff applied for an order to be made that would require the first defendant to obtain leave to take any fresh step in the present proceedings. There was no application in written form for that purpose, and no indication the first defendant had previously been notified of any such application. However, the first defendant appeared to be content to have the application heard and determined, and make submissions in opposition to it.
The source of my jurisdiction to make the order sought was not explored before me[rls12] .
I do not consider that the Vexatious Proceedings Restriction Act 2002 (WA) provides such jurisdiction.
Rather, I took the source of my jurisdiction to make such an order to be the inherent jurisdiction of the Court, of the sort described in Wentworth v Graham [2003] NSWCA 229. I note the following, per Ipp JA and Brownie AJA, at [2] - [4] and [24] ‑ [26]:
In Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 Barwick CJ and McTiernan J said at 320 that:
"[T]here is an inherent power of the court to control the bringing of applications in the course of an action of which the Court is seized for the purpose of preventing a party abusing the process of the court".
Their Honours held that, as part of this inherent power, a court may restrain a person from making unwarranted and vexatious applications in an action which is pending in the Court concerned, without the leave of the Court.
In Bhamjee v Forsdick (No 2) [2003] EWCA Civ 1113, the Master of the Rolls, Lord Phillips, said at [3]:
"[T]he courts are facing very serious contemporary problems created by the activities of litigants like Mr Bhamjee who are bombarding them with applications which have no merit at all. ... It is also [the case] that the court is having to divert the skilled attention that ought to be paid to cases of real merit which warrant early hearings to cases which have no merit at all."
The courts in this State are facing the same kind of problems to which the English Court of Appeal referred. There is a need, in this State, for courts to take appropriate steps to prevent the persistent making of hopeless interlocutory applications that unnecessarily take up the time of the court to the prejudice of the community in general and of other litigants in particular.
…
The proper conduct of hearings in the courtroom depends largely on all participants in the proceedings observing certain conventions. These conventions are substantially based on reasonable control over feelings, and respect for others and the judicial institution itself. The courtroom is a place where, not infrequently, the atmosphere becomes intense, emotions become inflamed, and patience wears thin. Sometimes things are said which may be regretted later. Nowadays, virtually all judges adopt a robust attitude to behaviour of this kind. There is a strong reluctance to resort to the remedy of contempt of court to restrain those who in the heat of litigation say things that are rude or insulting or disparaging to the presiding judicial officer. But there comes a time when it is no longer appropriate for judges to be impervious to improper behaviour by litigants, particularly those who make false allegations, are consistently rude, provocative, aggressive and obstructive, and who refuse to accept the decisions of the court. Care must be taken to preserve a proper degree of restraint, decorum and respect in the courtroom, otherwise the quality of justice will degenerate and administration of justice will be harmed. Eventually, steps must be taken to ensure that the time of the court and other parties is not wasted, and unnecessary costs are not incurred in futile litigation launched by obsessive and obdurate litigants.
The matters to which we have referred and the conduct of Miss Wentworth described in the judgments we have delivered today lead us to the prima facie view that the time has come to make an order of the kind referred to in Commonwealth Bank v Inglis. This was foreshadowed by Spigelman CJ in the appeal from the decision of Santow JA referred to above (see Wentworth v Graham [2003] NSWCA 104).
In addition, we propose not to allow Miss Wentworth to make oral submissions to the Court in any interlocutory proceedings other than in relation to the arguing of her appeal pursuant to the leave that has been or may be granted.
The basis for the application of the plaintiff was put in what was described to me as a history of the first defendant making multiple applications in proceedings before courts in relation to matters raised in the present proceedings, and her failure to appear in at least some hearings in those proceedings.
I took the first to be a reference to the history of proceedings in the District Court in CIV 2509 of 2002 to which I have previously referred, to which the present proceedings might be added, in relation to the endeavour to set aside the default judgment in the present proceedings.
In relation to the matter of failure to appear, I was referred to the judgment in Hall, Jenkins J, at [4], where the following appears:
This matter commenced before me as a trial held in the presence of both parties. The plaintiff was at all times represented by counsel. The defendant was unrepresented. After the first two days of the plaintiff's case I adjourned the trial to enable the defendant to prepare her defence to the plaintiff's claim. Considerable assistance was offered to the defendant by the Court to help her to prepare her defence. Despite this, and an adjournment of some months, the defendant failed to appear for the balance of the trial. Consequently, she did not present any evidence or any submissions for my consideration. Therefore, this action will be decided on the basis of the evidence presented in the plaintiff's case.
I note in this connection the first defendant's failure to appear at the hearing of 22 May 2007 in these proceedings.
However, I do not consider those matters, considered in combination, to represent a history equivalent to that in Wentworth. In particular, they do not represent a history, thus far, which would for the purposes of the present proceedings (in which there has not been the multiple applications that might have moved Registrar Kingsley in the District Court proceedings to make the order he did requiring leave for the first defendant to proceed as I previously indicated) in my view justify the making of the order requested. While I do not doubt that the history of the present proceedings has been a troubled one, I conclude, on the material available to me, that the explanation for that history appears to date to lie in the difficulties for the first defendant in conducting them with the resources available to her. To date, I do not see evidence that would warrant characterising her conduct of the proceedings in the way required for the order the plaintiff sought to be made.
Accordingly, I would dismiss the application of the plaintiff for that order.

Orders

I have also previously indicated that I would dismiss the first defendant's application and the plaintiff's application. Orders to those effects should be made.
I would also make an order for costs for the plaintiff on the first application. At the hearing of 24 May 2007, the solicitor for the plaintiff indicated his client would, in the event of the dismissal of the first defendant's application, ask for its costs of that application, to be fixed at the following amounts:
•$2,500, for the hearing of 29 March 2007: on the Court's hearing records, that hearing lasted from 10.42am to 1.05 pm, and from 2.19 pm to 5.16 pm;
•$300 for the hearing of 22 May 2007: on the Court's hearing records, that hearing lasted from 10.39 am to 11.16 am; and
•$2,500, for the hearing of 24 May 2007: on the Court's hearing records, that hearing lasted from 10.44 am to 1.08 pm, and from 2.18 pm to 5.09 pm.
This request to fix the costs, at the amounts indicated, is consistent with Practice Direction No 5 of 2005, as amended by Practice Direction No 4 of 2007. Also consistently with those practice directions, the costs would usually be payable forthwith.
However, I will allow the parties the opportunity to put to me whether or not some other order, in different amounts, is appropriate in view of my decision.
Consistently with the approach usually taken by the Court to an outcome favourable to a self-represented party, the only order as to costs I would make in respect of the plaintiff's application would be for any disbursements related to that application the first defendant can show she incurred. Given the way in which the application was made, as I have indicated, it does not seem to me to be likely there were any such costs, although I will hear from the first defendant on the matter.
Finally, I note that at the conclusion of the hearing on 24 May 2007, I indicated that I would make an order in terms of O 8 r 7(1), in both CIV 1131 of 2006, as well as the present proceedings, declaring that the solicitor at that hearing appearing for the plaintiff had ceased to act for it in both proceedings, but that I would only do so on compliance with the requirements of O 8 r 7. I will hear from the plaintiff as to whether there has been that compliance.

[rls1]Deleted:
"However, as I will shortly indicate, there was a further issue that emerged at the hearing, from material the first defendant had filed for it, but which had not been provided to the plaintiff."
Not clear this is necessary, in light of orders made at hearing of 29 March (to allow, as to funds raising ability, for matters in certificate of urgency, which is what above quote is getting at).

[MSOffice2]NB this matter for balance purposes.

[rls3]Check file.

[rls4]List out here evidence before me in affidavit form, presumably including at least D1 aff of 11 April 2007, affidavits of Taylor, and any others.

[rls5]Check the file to see there is not a third Taylor affidavit, of the "responsive" kind.

[rls6]Evidence will be reviewed in terms of its relevance to issues.

[rls7]And D1's aff in CIV 1131 of 2006 sworn 31 August 2006? See TS of hearing.

[rls8]See above, on commencement by filing, not service.

[rls9]Authority needed: LBC text on injunctions?

[rls10]To here, 24/05/2007 2:16 PM

[MSOffice11]To here, 24 May 2007, at 8h40 pm

[rls12]Check benchbook.