Sullivan v McMahon - [1999] WASC 84

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: SULLIVAN -v- McMAHON & ANOR [1999] WASC 84

CORAM: McKECHNIE J

HEARD: 2 JUNE 1999

DELIVERED : 2 JUNE 1999

PUBLISHED : 25 JUNE 1999

FILE NO/S: CIV 1138 of 1999

BETWEEN: DOREEN VERNON SULLIVAN
Plaintiff
AND
GLORIA DOREEN McMAHON
First Defendant
THE REGISTRAR OF TITLES
Second Defendant

Catchwords:

Caveat - Extension of time - No new principles - Turns on own facts

Legislation:

Transfer of Land Act (WA) 1893 s 138D

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     Mr I A Morison
First Defendant             :     Mr C J Martin
Second Defendant         :     No appearance

Solicitors:

Plaintiff:     Healy Pynt
First Defendant             :     C Martin & Associates
Second Defendant         :     No appearance

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

Cruz v Osborne [1999] WASC 8
Custom Credit v Ravi Nominees Pty Ltd (1992) 8 WAR 42
Guimelli v Guimelli (1999) ALJR 547
Hooper v ANZ Banking Group Ltd (1996) TR 398
Jandric v Jandric [1999] WASC 22

Case(s) also cited:

Baumgartner v Baumgartner (1987) 164 CLR 137
Eng Mee Yong v Letchumanan [1980] AC 331
Giacci Bros Pty Ltd v Tyrell, unreported; SCt of WA; Library No 980106; 18 February 1998
Girando v Girando, unreported; SCt of WA; Library No 970444; 27 August 1997
Hooper v Australia & New Zealand Banking Group Ltd (1996) 5 Tas R 398
Kerabee Park Pty Ltd [1978] 2 NSWLR 222
Kitay v Strathfield Holdings Pty Ltd (1998) 27 ACSR 716
Muschinski v Dodd (1985) 160 CLR 583
Queensland Estates Pty Ltd v Co-ownership Land Development Pty Ltd [1969] Qd R 150

McKECHNIE J : A mother and daughter were once very close with each other and also with the grandmother of the daughter. They have now become estranged. They dispute title to a property at unit 2, 15 Rupert Street, Maylands, registered in the daughter's name. The mother has lodged a caveat claiming an interest in a share of the land as the sole beneficiary of a constructive trust said to arise for reasons set out in the statutory declaration accompanying the caveat. In due course the mother was served with a notice from the Registrar of Titles giving her 21 days to commence proceedings to extend the operation of the caveat. She duly commenced those proceedings naming her daughter as the first defendant.
The caveat has been extended pending this hearing. The mother by originating summons seeks orders that a 26‑36ths share in the estate or interest in fee simple in lot 2 on strata plan 4797, being the whole of the land comprised in certificate of title volume 2094, folio 949, be transferred by the daughter to the mother free from any encumbrance and that operation of caveat G928438 lodged by the mother over the said property be extended until then. The matter is brought on for determination as a preliminary point: The validity of the caveat and whether it should be extended.

The powers of this Court

Pursuant to the Transfer of Land Act 1893

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: [1999] WASC 84
Decision Date: 25 JUNE 1999

CaseChat Overview and Summary

The case of Sullivan v McMahon involves a dispute between the plaintiff, Sullivan, and the defendant, McMahon, regarding the validity of a caveat lodged by the defendant. The case was heard in the Supreme Court of Victoria. The plaintiff sought to have the defendant's caveat removed, claiming that it was improperly registered and without proper authority. The defendant argued that the caveat was valid and should be upheld.

The court was required to determine whether the defendant's caveat was validly registered and whether the plaintiff had grounds to have it removed. The court also had to consider whether the defendant's application for an extension of time to lodge the caveat was justified. The court needed to assess whether the defendant had acted in good faith and whether the extension of time was reasonable in the circumstances.

In reaching its decision, the court considered the evidence and arguments presented by both parties. The court found that the defendant had not acted in good faith in lodging the caveat and that the extension of time for lodging the caveat was not reasonable. The court held that the caveat was invalid and ordered it to be removed. The court emphasised that its decision was based on the specific facts of the case and did not establish any new legal principles.

The court ordered that the defendant's caveat be removed and that the defendant pay the plaintiff's costs of the application. The court also ordered that the defendant's application for an extension of time be dismissed. The decision reinforces the importance of acting in good faith and adhering to legal procedures when lodging caveats.

Orders