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that certain caveats lodged by the plaintiff over property of which the first defendant was registered proprietor be 'withdrawn immediately'.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…

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: [2007] WASC 239
Decision Date: 19 OCTOBER 2007

CaseChat Overview and Summary

In the Federal Court of Australia, Spunter Pty Ltd brought an application to remove a caveat lodged by Hall. The case involved a dispute over the ownership of a property, with Hall lodging a caveat to prevent the property from being dealt with by Spunter Pty Ltd. The court was required to decide whether Spunter Pty Ltd could make an application to remove the caveat due to new facts or a change in circumstances. The court also had to consider whether such new facts or changes were shown to warrant the removal of the caveat. Furthermore, the court was asked to consider whether an application could be made to set aside a default judgment in the District Court proceedings. It was argued that such an application was not possible for the judge in the General Division. Lastly, the court was asked to consider whether an order should be made preventing a party from taking a fresh step in the proceedings without leave. The court had to determine whether such an order should be made in the exercise of its inherent jurisdiction in this case.

The court found that the application to remove the caveat could only be made if there were new facts or a change in circumstances that warranted the removal of the caveat. The court found that Spunter Pty Ltd had not shown such new facts or changes. The court also found that an application to set aside a default judgment in the District Court proceedings was not possible for the judge in the General Division. The court found that an order preventing a party from taking a fresh step in the proceedings without leave could be made in the exercise of the court's inherent jurisdiction in this case. However, the court found that such an order should not be made in this case.

The court dismissed the application made by the first defendant to remove the caveat. The court also dismissed the application made by the plaintiff to set aside the default judgment in the District Court proceedings. The court found that an order preventing a party from taking a fresh step in the proceedings without leave should not be made in this case. As a result, the final orders were that the first defendant's application was dismissed, the plaintiff's application was dismissed, and no order was made preventing a party from taking a fresh step in the proceedings without leave.

Orders

Orders of the court

First defendant's application dismissed

Plaintiff's application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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