Trevy Jay Assets Pty Ltd as trustee for Yvonne and Trevor Willis Superannuation v Armstrong Way Investments (WA) Pty Ltd - [2025] WASC 37

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   TREVY JAY ASSETS PTY LTD as trustee for YVONNE AND TREVOR WILLIS SUPERANNUATION -v- ARMSTRONG WAY INVESTMENTS (WA) PTY LTD [2025] WASC 37
CORAM:   HILL J
HEARD:   6 FEBRUARY 2025
DELIVERED          :   6 FEBRUARY 2025
PUBLISHED           :   10 FEBRUARY 2025
FILE NO/S:   CIV 1102 of 2025
BETWEEN:   TREVY JAY ASSETS PTY LTD as trustee for YVONNE AND TREVOR WILLIS SUPERANNUATION
Plaintiff

AND

ARMSTRONG WAY INVESTMENTS (WA) PTY LTD
First Defendant

REGISTRAR OF TITLES
Second Defendant

Catchwords:

Real property - Application to extend operation of caveat - Plaintiff's interest arises under loan agreement with defendant - Whether plaintiff has established claim to interest in land has or may have substance - Balance of convenience - Turns on own facts

Legislation:

Transfer of Land Act 1893 (WA) s 138B

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff	:	P G McGowan
First Defendant	:	No appearance
Second Defendant	:	No appearance

Solicitors:

Plaintiff	:	Equitas Lawyers
First Defendant	:	No appearance
Second Defendant	:	No appearance

Cases referred to in decision:

Bride v The Registrar of Titles [2015] WASC 11
Custom Credit Corp Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42
Murphy v Wright [1992] NSWCA 168
Southern Wine Corporation Pty Ltd (in liq) v Frankland River Olive Co Ltd [2005] WASCA 236

HILL J:

(This judgment was delivered extemporaneously and has been edited from the transcript to include references, headings and to correct matters of grammar and expression.)

On 17 January 2025, on the application of the first defendant, Landgate issued a notice to the plaintiff pursuant to s 138B of the Transfer of Land Act 1893 (WA) (Act) in respect of caveat Q207053 (Caveat). The plaintiff lodged the Caveat over a portion of land described by the hatched area in a sketch of land, described more particularly in Lot 2104 of Deposited Plan 216853 in Certificate of Title Volume 2114, Folio 531, which is known as 30 Armstrong Way, Newman. The Caveat is expressed to prevent the registration of any instrument unless it is subject to the plaintiff's claim. The Caveat will lapse at midnight on 7 February 2025 unless an order is obtained from this court extending the Caveat.
By originating summons filed on 3 February 2025, the plaintiff seeks an extension of the operation of the Caveat pursuant to s 138B(2)(a)(ii) of the Act. The originating summons was accompanied by a certificate of urgency, a memorandum pursuant to O 59 r 9(2) of the Rates of the Supreme Court Act 1971 (WA) seeking a waiver of the obligation of conferral, and an undertaking as to damages.
In support of the application, the plaintiff has read three affidavits, all filed on 3 February 2025. They are an affidavit of Yvonne Willis, a director of the plaintiff; an affidavit of Martin Hugh Tuohy, a principal of the plaintiff's solicitors; and an affidavit of Colleen Evelyn Tuohy, a process server attesting to service of the application on each…

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

AGLC: Trevy Jay Assets Pty Ltd as trustee for Yvonne and Trevor Willis Superannuation v Armstrong Way Investments (WA) Pty Ltd [2025] WASC 37
Case: [2025] WASC 37
Decision Date: 10 FEBRUARY 2025

CaseChat Overview and Summary

The case of Trevy Jay Assets Pty Ltd as trustee for Yvonne and Trevor Willis Superannuation v Armstrong Way Investments (WA) Pty Ltd involved a dispute over an application to extend the operation of a caveat on a property. The plaintiff sought to extend the operation of a caveat over a property, arguing that it secured a loan agreement with the defendant. The legal issues before the court were whether the plaintiff had established a claim to an interest in the land that had or may have substance, and whether the balance of convenience favoured extending the operation of the caveat.

The court found that no particular words were required to create an equitable charge. It held that an agreement for a person to place a caveat on another's title had been previously held to be an intention to create an equitable charge. The court accepted that there was a serious question to be tried that, in substance, clause 5 of the Agreement granted an equitable charge to the plaintiff. The court also found that the equitable charge was an interest capable of supporting a caveat. The balance of convenience was found to favour the extension of the operation of the Caveat, as it was the only means by which the loan was secured. If the Caveat was permitted to lapse, the plaintiff's security would be defeated, and they would be deprived of the substance of their rights under the Agreement.

The court concluded that it was appropriate to make an order pursuant to section 138B(2)(a)(ii) of the Act to extend the operation of caveat Q207053 relating to Lot 2104 of Deposited Plan 216853 in Certificate of Title Volume 2114, Folio 531, known as 30 Armstrong Way, Newman, until further order. The orders made by the court are set out in Annexure 'A'.

Orders

Orders of the court

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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

No particular words are required to create an equitable charge. An agreement for a person to place a caveat on another's title has been previously held to be an intention to create an equitable charge, including in the Court of Appeal's decision in Southern Wine Corporation Proprietary Limited (in liq) v Frankland River Olive Company Limited [2005] WASCA 236.[12] In the absence of any contrary indication, I accept that there is a serious question to be tried that, in substance, cl 5 of the Agreement grants an equitable charge to the plaintiff. I also accept that the equitable charge is an interest capable of supporting a caveat. In my view, the balance of convenience favours the extension of the operation of the Caveat. I accept that the Caveat is, at this stage, the only means by which the loan is secured. If the Caveat is permitted to lapse and the property is subsequently sold and the proceeds disbursed, the plaintiff's security that they were granted by the Agreement will be defeated, and the plaintiff will be deprived of the substance of their rights under the Agreement.[13][13] Plaintiff's outline of submissions filed 3 February 2025 [24]. For these reasons, I consider that it is appropriate that an order be made pursuant to s 138B(2)(a)(ii) of the Act to extend the operation of caveat Q207053 relating to Lot 2104 of Deposited Plan 216853 in Certificate of Title Volume 2114, Folio 531, known as 30 Armstrong Way, Newman, until further order.[14][14] At the conclusion of the hearing, I made orders in terms of Annexure 'A'.