Conveyancing - Caveats - Extension of caveat - Deed of charge - Charging interest in land with payment of legal costs - Deed of charge authorising lodging of caveat to protect interest in land - Plaintiff unable to presently enforce debt for legal costs - Balance of convenience

Conveyancing - Caveats - Extension of caveat - Charge securing repayment of monies - Whether any monies still owed - Balance of convenience

Conveyance - Caveats - Extension of caveat - Statutory charge pursuant to Legal Practitioners Act 1893 (WA) (Repealed), s 73 - Whether suspended legal practitioner has statutory charge which may be protected by a caveat - Balance of convenience

Legislation:

Legal Practice Act 2003 (WA)
Legal Practitioners Act 1893, (WA) (Repealed), s 73

Transfer of Land Act 1893 (WA), s 138B, s 138C

Result:

Caveat extended on conditions

Category: B

Representation:

Counsel:

Plaintiff:     Mr S J Lemonis
First Defendant             :     Mr J R Birman
Second Defendant         :     No appearance

Solicitors:

Plaintiff:     Fairweather & Lemonis
First Defendant             :     Birman & Ride
Second Defendant         :     No appearance

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

Aaronisle v Thorpe & Anor [2005] WASC 87
Avco Financial Services Ltd v White [1977] VR 561
Composite Buyers Ltd v Soong (1995) 38 NSWLR 286
Custom Credit Corp Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42
J & H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546
Re Charge Card Services Ltd [1987] Ch 150

Case(s) also cited:

Allcard v Skinner (1887) 56 LJ Ch 1052
CJ Redman Construction Pty Ltd v Tarnap Pty Ltd (2006) NSW ConvR 56-154
Commonwealth v Verwayen (1990) 170 CLR 394
Custom Credit Corporation Ltd v Chellaston Pty Ltd & Anor, unreported; SCt of WA (Anderson J); Library No 930340; 10 June 1993
Eng Mee Yong v Letchumanan [1980] AC 331
Matthews v Doctrieve Corp Pty Ltd (2003) 59 IPR 155
Moorgate Mercantile Co Ltd v Twitchings [1977] AC 890
Quek v Beggs (1990) 5 BPR 11,761
Re P's Bill of Costs (1982) 45 ALR 513
Shaddick v Dunsford Investments Pty Ltd (1993) 6 BPR 13,295
Thompson v Palmer (1933) 49 CLR 507
Troncone v Aliperti (1994) 6 BPR 13,291
Westpoint Corporation Pty Ltd v The Registrar of Titles & Anor [2004] WASC 189

JENKINS J: Pursuant to the Transfer of Land Act 1893 (WA) ("the Act), s 138C the plaintiff applies, by originating summons dated 22 March 2006, for orders extending a caveat.
On 21 October 2005 the plaintiff lodged caveat no J480761 ("the caveat") over the first defendant's land. The land is described as lots 13,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Thorpe v Sizer Developments Pty Ltd & Anor

Details

AGLC: Thorpe v Sizer Developments Pty Ltd & Anor [2006] WASC 151
Case: [2006] WASC 151
Decision Date: 28 JULY 2006

CaseChat Overview and Summary

In the Supreme Court of Western Australia, Thorpe, the plaintiff, brought an action against Sizer Developments Pty Ltd and another defendant, contesting the validity of a caveat lodged by the defendants. The plaintiff claimed that the defendants had no legitimate interest in the land, as the plaintiff had not yet enforced a debt for legal costs, and thus, there was no basis for the defendants to protect their interest through a caveat. The defendants argued that they held a valid interest in the land as the plaintiff had executed a deed of charge, which authorized the defendants to lodge a caveat to safeguard their interest in the land.

The primary legal issues the court had to resolve were whether the defendants had a legitimate interest in the land sufficient to support the caveat and if the balance of convenience favoured the defendants. The court had to consider the nature of the interest the defendants claimed through the deed of charge, the status of the debt for legal costs, and the balance of convenience in deciding whether the caveat should be upheld.

The court found that the defendants' interest was not sufficient to support the caveat, as the plaintiff had not yet enforced the debt for legal costs. Consequently, the defendants could not claim a legitimate interest in the land. Furthermore, the court determined that the balance of convenience did not favour the defendants. As a result, the court ruled that the defendants' caveat was invalid, and it was quashed.

The court ordered that the caveat lodged by Sizer Developments Pty Ltd and the other defendant be removed from the register of titles. Additionally, the court awarded costs to the plaintiff, Thorpe, against the defendants.

Orders