Wallace v Perkins - [2009] WASC 154

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: WALLACE -v- PERKINS [2009] WASC 154

CORAM: TEMPLEMAN J

HEARD: 18 MAY 2009

DELIVERED : 2 JUNE 2009

FILE NO/S: CIV 1082 of 2009

BETWEEN: LILIANA WALLACE
First Plaintiff
RICCARDO RIZZI
Second Plaintiff
AND
DEBRA ANN PERKINS
First Defendant
REGISTRAR OF TITLES
Second Defendant

Catchwords:

Costs - Absolute caveat protecting plaintiff as the holder of option to purchase land - Settlement of dispute over whether option could be exercised - Settlement included transfer of the land subject to a restrictive covenant - Defendant becomes registered proprietor of subject land - Defendant's efforts charge land so as to raise finance inhibited by the caveat - Defendant causes Registrar of Titles to serve notice under s 138B of Transfer of Land Act 1893 - Plaintiff applies to extend caveat - At hearing of application defendant informs court that finance can proceed without need to charge land - Hearing adjourned by agreement - Plaintiff claims entitlement to costs - Whether entitlement affected by delay - Whether caveat should be amended - Whether plaintiff unreasonably rejected settlement offer - Whether balance of convenience favours defendant

Legislation:

Nil

Result:

Caveat amended
Caveat in force until transfer or further orders
Liberty to apply for defendant
Defendant pay costs of this application

Category: B

Representation:

Counsel:

First Plaintiff                  :     Mr A Metaxas
Second Plaintiff             :     Mr A Metaxas
First Defendant              :     Mr D B Shaw
Second Defendant         :     No appearance

Solicitors:

First Plaintiff                  :     Metaxas & Hager
Second Plaintiff             :     Metaxas & Hager
First Defendant              :     DLA Phillips Fox
Second Defendant         :     No appearance

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

Binningup Nominees Pty Ltd v Brogue Tableau Pty Ltd [2004] WASC 14
Brogue Tableau Pty Ltd v Binningup Nominees Pty Ltd (2007) 35 WAR 27
Custom Credit Corp Ltd v Chellaston Pty Ltd (Unreported, WASC, Library No 930340, 10 June 1993)
Deputy Commissioner of Taxation v Corwest Management Pty Ltd [1978] WAR 129
Kuper v Keywest Constructions Pty Ltd (1990) 3 WAR 419
Midland Brick Co Pty Ltd v Welsh (2006) 32 WAR 287; [2006] WASC 122
Navarac Pty Ltd v Moondancer Holdings Pty Ltd [2009] WASC 68
Porter v McDonald [1984] WAR 271

TEMPLEMAN J: This is nominally, an application by the plaintiffs to extend the operation of a caveat over land of which the first defendant is the registered proprietor. However, in reality, the application is being driven by the first defendant, who wishes to avoid an adverse costs order in circumstances to which I shall refer below.
The second defendant - the Registrar of Titles - has played no part in the proceedings. It will therefore be convenient to refer to the first defendant as 'the defendant'.

The history of the application

The first plaintiff and the defendant are or were neighbours in Grove End Ridge, Mount Claremont. They own lots 123 and 122 respectively. Lot 122 includes a tennis court.
The defendant is the successor in title to Robert Richardson Goodwin and…

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 Wallace v Perkins

Details

AGLC: Wallace v Perkins [2009] WASC 154
Case: [2009] WASC 154
Decision Date: 2 JUNE 2009

CaseChat Overview and Summary

In Wallace v Perkins, the plaintiff sought to enforce a caveat protecting his option to purchase land. The defendant, who had become the registered proprietor of the land, opposed the plaintiff's application to extend the caveat. The parties had previously negotiated a settlement whereby the plaintiff would transfer the land subject to a restrictive covenant, but the defendant's ability to finance this transaction was contingent on the caveat being removed. The defendant had served a notice under section 138B of the Transfer of Land Act 1893, prompting the plaintiff to apply to extend the caveat. During the hearing, the defendant informed the court that financing could proceed without the need to charge the land, leading to an adjournment by agreement. The plaintiff subsequently claimed entitlement to costs, arguing that the defendant's delay had affected his entitlement and that the caveat should be amended. The plaintiff also contended that the defendant had unreasonably rejected a settlement offer and that the balance of convenience favoured the defendant.

The court considered whether the delay in resolving the dispute affected the plaintiff's entitlement to costs. It examined the circumstances leading to the delay, including the defendant's initial position that the caveat needed to be removed to proceed with the financing. The court also assessed whether the plaintiff had unreasonably rejected the settlement offer. Furthermore, it evaluated whether the balance of convenience favoured the defendant, given the defendant's ability to proceed with the financing without the need to charge the land. The court had to determine whether the plaintiff's actions in maintaining the caveat were justified and whether the caveat should be amended to reflect the changed circumstances.

The court concluded that the delay did not affect the plaintiff's entitlement to costs, given that the defendant's financing could proceed without the need to charge the land. It found that the plaintiff had not unreasonably rejected the settlement offer, as the defendant's initial stance had been that the caveat needed to be removed. The court also determined that the balance of convenience favoured the defendant, as the financing could proceed without the need to charge the land. Consequently, the court ordered that the caveat should be amended to reflect the changed circumstances and that the plaintiff pay the defendant's costs of the application. The court further directed that the plaintiff's costs be assessed on the standard basis.

Orders