Walthamstow Pty Ltd v Saliba - [2010] WASC 131

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: WALTHAMSTOW PTY LTD -v- SALIBA [2010] WASC 131

CORAM: HALL J

HEARD: 19 MAY 2010

DELIVERED : 19 MAY 2010

FILE NO/S: CIV 1650 of 2010

BETWEEN: WALTHAMSTOW PTY LTD
Plaintiff
AND
CARMEL CHARLES SALIBA
First Defendant
THE REGISTRAR OF TITLES
Second Defendant

Catchwords:

Caveat - Caveatable interest - Abridgement of time - Injunction to prevent further caveats

Legislation:

Transfer of Land Act 1893 (WA), s 138

Result:

Application to remove caveat granted
Injunction granted on limited basis

Category: B

Representation:

Counsel:

Plaintiff:     Mr A J Musikanth
First Defendant             :     In person
Second Defendant         :     No appearance

Solicitors:

Plaintiff:     Taylor Smart
First Defendant             :     In person
Second Defendant         :     No appearance

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

Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42
Gangemi v Gangemi [2009] WASC 268
Milne Feeds Pty Ltd v Bride (Unreported, WASC, Library No 960247, 7 May 1996)
Patmore v Upton [2004] TASSC 77

HALL J: (This judgment was delivered extemporaneously and edited from the transcript)

This is an application pursuant to s 138(2) of the Transfer of Land Act 1893 (WA) seeking the removal of a caveat on the land situated at 4 Carman Way Bassendean, that I will hereinafter refer to as 'the premises'. The plaintiff also seeks an injunction preventing the first defendant from lodging further caveats over specified properties. The second defendant is the Registrar of Titles, who has written to the court indicating he will abide by any orders made.

Urgency - Abridgement of time

The originating summons was filed at the registry on 7 May 2010. The rules provide that there should be 10 days between service and hearing, but the court has power to abridge that time if the circumstances justify. Together with the originating summons, there was filed a certificate of urgency and an affidavit of Mr Steven Masel dated 7 May 2010. The certificate certified that the matter was of such a nature that it was required to be heard urgently and that if service could not be effected within 10 clear days an abridgement of time would be sought.
The urgent nature of the matter is evident from the affidavit of Mr Masel. The property in question is subject to a contract of sale which has already passed settlement date. A clause in the contract permits settlement to be extended where delay is due to no fault of the vendor. The plaintiff, as mortgagee in possession, is the vendor. The extension period is no more than 90 days. That time will expire on 25 May 2010.
Accordingly, the plaintiff is likely to be prejudiced by lapse of the contract if these proceedings cannot be heard and determined prior to 25 May 2010. According to an affidavit of Mr Saul Davies sworn 12 May 2010, who is the solicitor for the plaintiff, at the time of filing the originating summons he sought a hearing date that was prior to…

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

Case: [2010] WASC 131
Decision Date: 19 MAY 2010

CaseChat Overview and Summary

Walthamstow Pty Ltd, the plaintiff, brought proceedings against Saliba, the first defendant, and others, in the Supreme Court of Western Australia, seeking an order for the removal of a caveat and an injunction to prevent further caveats over certain properties. The plaintiff also sought an order to abridge time for service of the originating summons. The plaintiff, a mortgagee, claimed that the caveat lodged by the first defendant was invalid as it was not based on a caveatable interest. The plaintiff further argued that there was a real risk that the first defendant would lodge further caveats over other properties, which would be similarly without merit.

The court had to determine whether the caveat lodged by the first defendant was valid and whether there was a real risk that the first defendant would lodge further caveats. The court had to consider whether the onus was on the caveator to demonstrate a serious question to be tried as to the validity of the caveatable interest, and whether the plaintiff had established that there was a real risk of further caveats being lodged. The court also had to consider whether there were sufficiently urgent circumstances to abridge time for service of the originating summons and whether an injunction was appropriate to prevent the first defendant from lodging further caveats.

The court found that the onus was on the first defendant to demonstrate that there was a serious question to be tried as to whether there was a valid caveatable interest. The court found that the first defendant had failed to do so and that there was no arguable basis for claiming a caveatable interest. The court also found that there were sufficiently urgent circumstances to abridge time for service of the originating summons. The court granted an injunction restraining the first defendant from lodging a caveat over the property that was the subject of these proceedings but did not grant an injunction in respect of the other properties listed in annexure A.

The court made an order for the removal of the caveat and an injunction restraining the first defendant from lodging a caveat over the property that was the subject of these proceedings. The court also made an order abridging time for service of the originating summons.

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

In proceedings under s 138 of the Transfer of Land Act the onus rests on the caveator to demonstrate that there is a serious question to be tried as to whether there is a valid caveatable interest: Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42. A registered proprietor is not entitled to lodge a caveat merely because he is the registered proprietor. There must be some interest over and above that status before it can be said that there is a registrable interest: Patmore v Upton. Notwithstanding the shortness of time with which these proceedings have been brought on, Mr Saliba has had since 17 February 2010 to lodge statutory declarations to support his caveat. He has availed himself of that opportunity and those statutory declarations disclose no arguable basis for claiming a caveatable interest, nor indeed does his evidence given here today. Accordingly, I am of the view that an order for removal of the caveat must be made. I am also satisfied that sufficiently urgent circumstances exist to make that order now and in doing so abridge time for service of the originating summons. I then turn to the question of an injunction. The court has jurisdiction to grant an injunction restraining a party from conduct which is lawful, on the ground that it is necessary, in the interests of justice, to protect a particular litigant from a multiplicity of actions and to order the business of the court; Milne Feeds Pty Ltd v Bride (Unreported, WASC, Library No 960247, 7 May 1996) (Murray J) [17] and Gangemi v Gangemi [2009] WASC 268. The plaintiff seeks an injunction restraining the first defendant from lodging a caveat over any of the properties listed in annexure A to the originating summons. Those 13 properties are also mortgaged in favour of the plaintiff pursuant to the same mortgage as referred to in these proceedings. The plaintiff submits that there is a real risk that the first defendant, Mr Saliba, will lodge further caveats. The grounds for that concern appear to be that two caveats were previously lodged over the 80 Crawford Street, Cannington property and were removed by order of the Chief Justice. I note that in Gangemi a similar issue arose and Murphy J was persuaded to grant an injunction of the type sought when it became apparent, as a result of things said at the hearing, that there was a real risk that the defendant in those proceedings would lodge further caveats on the same grounds as those which had been found to be without merit. The difficulty in this case is that there has been no express statement by the first defendant, Mr Saliba, that he intends to lodge further caveats on the same basis; in fact, to the contrary. He has denied any intention to do so. Furthermore, it is difficult for me to draw any inference from the Cannington caveats, as they appear to have been based on different grounds. I would be prepared to grant an injunction in regard to the premises the subject of these proceedings; that is, the premises that are the first named in annexure A, but not the others, given that I am not satisfied that there is evidence forthcoming that the risk of caveats being lodged in respect of other properties is established by the evidence that is available.