Thomson v Thomson

[2010] WASC 199

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   THOMSON -v- THOMSON [2010] WASC 199

CORAM:   LE MIERE J

HEARD:   ON THE PAPERS

DELIVERED          :   5 AUGUST 2010

FILE NO/S:   CIV 2201 of 2009

MATTER                :Section 138C of the Transfer of Land Act 1893 (WA)

BETWEEN:   DESMOND ARTHUR THOMSON

Plaintiff

AND

JAY LEROY THOMSON
First Defendant

REGISTRAR OF TITLES
Second Defendant

Catchwords:

Costs - Originating summons - Extension of caveat - Turns on own facts

Legislation:

Nil

Result:

First defendant pay plaintiff's costs of originating summons

Category:    B

Representation:

Counsel:

Plaintiff:     Mr M S Crawford

First Defendant             :     In person

Second Defendant         :     No appearance

Solicitors:

Plaintiff:     Arns & Associates

First Defendant             :     In person

Second Defendant         :     No appearance

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

Nil

1. LE MIERE J:  On 1 July 2009 the plaintiff issued an originating summons for orders extending the operation of a caveat lodged against the first defendant's land.  The plaintiff seeks the first defendant pay the costs of the originating summons.

The action

1. On 29 October 2003 the plaintiff and his late wife entered into an agreement with the first defendant for purchase of 22 Binden Place (Binden Place).  Binden Place is part of 37A Belvedere Road (Belvedere Road), which is owned by the first defendant.  The terms of the purchase agreement provides that the first defendant carry out certain construction and renovation works at Belvedere Road and effect subdivision of Binden Place and ultimately effect the transfer of Binden Place to the plaintiff and his late wife.  On 3 October 2005 the plaintiff and his late wife issued a caveat over Belvedere Road (Caveat).

2. The plaintiff and his late wife paid the purchase price in full on 28 January 2005.  The first defendant did not complete the works and contended that the purchase agreement came to an end.  On 18 February 2008 the plaintiff and his late wife entered into a Deed of Settlement with the first defendant.  Clause 6 of the Deed states that the parties are required 'to do all things necessary to give effect to this Deed and achieve the subdivision of Belvedere Road whereby unencumbered title in Binden Place passed to the Buyers in a prompt and orderly fashion'.  Clause 7 of the Deed provides that the Caveat remain on Belvedere Road at the Buyers' discretion pending subdivision and settlement.  It also states that the Buyers are to provide a signed withdrawal of the Caveat at time of settlement of the subdivision.  The effect of cl 7 is that title to Binden Place would be transferred to the Buyers upon subdivision and settlement.

3. On 12 June 2009 the first defendant contended that the subdivision process was ready to occur and requested the removal of the Caveat.  The plaintiff was not confident the assertion was true.  On 22 June 2009 the plaintiff received a 21 day notice from Landgate (Notice) notifying the plaintiff that unless he obtained an order from the Supreme Court to extend the Caveat it would automatically be removed on 13 July 2009.

History of proceedings

1. The plaintiff caused to be issued an originating summons on 1 July 2009 along with a chamber summons for extension of the Caveat.  On 9 July 2009 the matter was heard with no appearance by the first defendant.  Orders were made extending the Caveat and the matter was adjourned.  On 6 August 2009 the matter was heard again with no appearance by the first defendant.  The plaintiff advised the court that a withdrawal of the Caveat was being processed and subdivision would occur.  On 13 October 2009 the matter was heard with no appearance by the first defendant.  The plaintiff advised that a new caveat had been lodged over Binden Place.  On 24 November 2009 the matter was heard again.  Orders were made dismissing the originating summons and the plaintiff sought an order that the first defendant pay the costs of the originating summons.

Costs of originating summons

1. The first defendant submits that he made attempts to receive confirmation from the plaintiff that the Caveat would be removed upon settlement of the subdivision to allow settlement to take place.  The first defendant submits that he issued the Notice as he received no confirmation from the plaintiff for removal of the Caveat.

2. The plaintiff submits that the first defendant issued the Notice before settlement of the subdivision was ready to take place.  Further, the plaintiff submits that the first defendant was not ready to proceed to settlement even after the lapse date of 13 July 2009.  There is evidence to support that the first defendant was not ready to proceed to settlement upon the lapse date.  Firstly, an email from the settlement agents to the plaintiff's solicitor of 13 July 2009 states 'the seller [the first defendant] is not in a position to settle at present'.  Secondly, as at 17 July 2009 the first defendant was still awaiting confirmation from its bank as to the inclusion of the new caveat in the lodgement bundle.  Thirdly, the plaintiff submits that certain works identified by the City of Stirling in 2008 had not been completed, which were required to be completed for settlement to occur.  Fourthly, settlement of the proposed subdivision had not even been scheduled at the time the Notice was issued.  The effect of this is that if the Caveat lapsed on 13 July 2009 the plaintiff would not be able to lodge a new caveat until settlement of subdivision occurred and the plaintiff's interest would be left unprotected.

3. On 23 June 2009 the plaintiff's solicitor raised concerns with the first defendant about whether settlement was ready to proceed and requested the first defendant agree to an extension of the Caveat.  The first defendant did not agree to an extension.  The plaintiff then issued an originating process and chamber summons for extension of the Caveat.

4. It is clear from the evidence that the first defendant prematurely advised the plaintiff that settlement was ready to occur.  Subdivision and settlement took place after the lapse date of the Caveat.  The plaintiff did not indicate to the first defendant that they would not withdraw the Caveat when settlement was actually ready to occur.  Further, there existed a Deed of Settlement between the parties, which provided that the plaintiff had to remove the Caveat at the time of settlement of the subdivision.  It then follows that the first defendant caused to be issued the Notice prematurely.  If the plaintiff did not instigate proceedings in the Supreme Court his interest would have been left unprotected.  The first defendant should pay the plaintiff's costs of the originating summons.

Conclusion

1. The first defendant is to pay the plaintiff's costs of the originating summons to be taxed.