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.)

1. 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.

2. 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.

3. 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 of the defendants.

4. I am satisfied from the affidavit of Ms Tuohy that the application has been served on the registered office of the first defendant and note that there has been no appearance by the first defendant at the hearing, nor a notice of appearance or any documents lodged at the court on behalf of the first defendant.  The plaintiff's solicitors have received a letter from the second defendant, the Registrar of Titles, giving notice that they intend to take no part in these proceedings.[1]

   [1] Exhibit 'A'. 

Factual background

1. The factual background to the application is set out in the affidavit of Ms Willis and can be summarised as follows.

2. The plaintiff is the trustee of the Yvonne and Trevor Willis Superannuation Fund.  Ms Willis is a beneficiary of this fund.[2]

   [2] Affidavit of Yvonne Willis filed 3 February 2025 [2].

3. On 25 April 2022, the plaintiff entered into a written loan agreement with the first defendant, whereby the plaintiff agreed to loan the first defendant $272,000, which were superannuation funds (Agreement).  Pursuant to the express terms of the Agreement, the first defendant consented to the plaintiff lodging a subject to claim a caveat over 30A and 30B Armstrong Way in Newman.  The first defendant also agreed to pay the plaintiff's costs and expenses of the lodgement of this Caveat, capped at $330 exclusive of GST, along with any fees payable to Landgate.[3]

   [3] Affidavit of Yvonne Willis filed 3 February 2025 [6], [11].

4. Until July 2024, the plaintiff received interest payments under the Agreement but has not received any payments from the first defendant since 25 July 2024.[4]

   [4] Affidavit of Yvonne Willis filed 3 February 2025 [19] - [20].

5. In late October 2024, Ms Willis learnt that the first defendant had listed the property for sale.[5]

   [5] Affidavit of Yvonne Willis filed 3 February 2025 [26].

6. Ms Willis now knows that 30 Armstrong Way, Newman, has not been subdivided as was originally contemplated.[6]  On 12 November 2024, the plaintiff lodged a caveat over the entirety of 30 Armstrong Way, Newman.[7]  After receiving and addressing a requisition that had been issued by Landgate, a plan was produced which is now attached to the caveat.  On 6 January 2025, the Caveat was accepted by the second defendant for lodgement.[8]

   [6] Affidavit of Yvonne Willis filed 3 February 2025 [17].

   [7] Affidavit of Yvonne Willis filed 3 February 2025 [30].

   [8] Affidavit of Yvonne Willis filed 3 February 2025 [34].

Legal principles

1. The general principles that apply to the extension of a caveat are well established.  In essence, in assessing whether to grant the extension of the caveat, there are two broad issues that must be considered by the court.[9]

   [9] Bride v The Registrar of Titles [2015] WASC 11 [11] - [16].

2. The first is whether the caveator's claim in respect to the interest or estate in land has or may have substance.  The second is whether the balance of convenience favours the retention of the caveat and the appropriate orders to be made.[10]

   [10] Bride v The Registrar of Titles [2015] WASC 11 [11] - [16].

3. The first issue is sometimes expressed as whether the caveator can show that there is a serious question to be tried or whether they have a prima facie case.  In assessing this, the court does not ordinarily evaluate the plaintiff's evidence or undertake a preliminary trial of the issues.  The requirement that the caveator's claim of substance be in respect of a claim of an interest or estate in land has been held to mean that the claim must concern a proprietary interest in the land.

4. The second issue is the balance of convenience in extending the caveat.  In this regard, the court considers whether or not it should exercise its discretion to extend the caveat.  This is an exercise that is not independent of the strength or weakness of the caveator's claim.  Rather, the apparent strength or weakness of the case for relief at trial is a relevant consideration on the balance of convenience.

5. An important factor in considering the balance of convenience is the question as to whether a failure to extend a caveat will have the effect of destroying or substantially impairing the benefit of the proprietary interest which is claimed. 

Disposition

Does the plaintiff's claim to an interest in the land have or may have substance?

1. The onus is on the plaintiff to demonstrate that the caveatable interest it claimed has or may have substance.[11]  In this case, the interest that is claimed arises from cl 5 of the Agreement. 

   [11] Custom Credit Corp Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42, 50 (Owen J).

2. 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. 

Balance of convenience

[12] Southern Wine Corporation Pty Ltd (in liq) v Frankland River Olive Co Ltd [2005] WASCA 236 [40] (McLure JA; Wheeler JA agreeing) citing with approval Murphy v Wright [1992] NSWCA 168. See also Pullin JA at [62(e)].

1. In my view, the balance of convenience favours the extension of the operation of the Caveat. 

2. 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].

Conclusion and Orders

1. 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'. 

Annexure 'A'

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

KS

Associate to the Hon Justice Hill

10 FEBRUARY 2025