Walthamstow Pty Ltd v Saliba [No 2] - [2010] WASC 140

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: WALTHAMSTOW PTY LTD -v- SALIBA [No 2] [2010] WASC 140

CORAM: HALL J

HEARD: 28 MAY 2010

DELIVERED : 28 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 - Lodged contrary to previous injunction - Injunction to prevent further caveats

Legislation:

Nil

Result:

Application to remove caveat granted
Injunction granted

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):

Walthamstow v Saliba [2010] WASC 131

HALL J: (This judgment was delivered extemporaneously on 28 May 2010 and edited from the transcript)

The first defendant in these proceedings is Mr Saliba, who appears today unrepresented. The plaintiff holds a registered mortgage over the premises which are identified as being lot 321 on plan 8766, certificate of title volume 229, folio 139A, a property in Carman Way in Bassendean. That mortgage secures an amount of $1.2 million lent and advanced by the plaintiff to the first defendant, plus interest.
The first defendant defaulted on his obligations under the mortgage and on 19 January the plaintiff exercised its powers as mortgagee and sold the premises to third party purchasers pursuant to a written contract. The first defendant lodged a caveat on 17 February, approximately one week before the date scheduled for settlement. In consequence, the settlement did not occur.
On 7 May 2010 the plaintiff filed an application pursuant to s 138(2) of the Transfer of Land Act (WA) for removal of that caveat and for further relief including the grant of an injunction. The application was brought on an urgent basis because the settlement date had been extended to occur on 25 May and the contract provided that if settlement did not occur the contract would in effect come to an end.
The matter was initially listed for hearing on 14 May but was adjourned, on the application of the first defendant, until 19 May. On 19 May, after hearing oral evidence from the first defendant Mr Saliba, I ordered that the second defendant, the Registrar of Titles, do remove forthwith the caveat that had been lodged on 17 February. I also ordered that the first defendant be restrained from lodging any further caveat over the property in Carman Way: Walthamstow v Saliba [2010] WASC 131.
On 24 May 2010, the day prior to the day scheduled for settlement, the first defendant Mr Saliba lodged a further caveat over the premises, despite the Court's order prohibiting him from doing so. He has appeared today and indicated that he had some confusion in his mind as to the meaning of the orders then delivered. Whether that be so or not I do not intend to determine at this point.
However, I am satisfied on the evidence before me that the caveat that was lodged on 24 May 2010 was lodged in contravention of the order that I made on 19 May. The first defendant has sought orders to the effect that the caveat that was lodged on that date, being L324369, was unlawful and contrary the orders made on 19 May and that the second defendant, the Registrar of Titles, forthwith remove that caveat.
The plaintiff also seeks that the orders made on 19 May be varied such that order 4 of that order be varied to order that an injunction be granted restraining the first defendant, Mr Saliba, from lodging a caveat against any of the properties listed on annexure A and restraining the second defendant, the Registrar of Titles, from accepting for lodgement from the first defendant any caveat. The wording of that has now been amended as a result of an email received from the office of Landgate.
I understand that the chamber summons has not been served on the Registrar of Titles. However, on my query to the plaintiff's counsel as to whether Landgate was agreeable to an injunction being granted in the terms sought, an email has been received by my associate from a supervisor at Landgate which I have earlier read into the record but for the purposes of these reasons relevantly reads:
If the Registrar was served with an order restraining him from accepting the lodgement of and recording a caveat from a particular person, then he would be entitled to reject any such caveat immediately.
I infer from that that the Registrar of Titles does not object to an injunction being ordered in the terms sought, subject to it being amended as requested by the plaintiff's counsel so that [(b)] now reads 'the second defendant from accepting lodgement from the first defendant and recording any caveat'.
If contrary to that inference on my part the Registrar of Titles does have some difficulty with the injunction, then the orders that are proposed would give the Registrar liberty to apply on 72 hours' notice to this court to seek some amendment to those orders.
The plaintiff also seeks orders that the orders that I propose to make be extracted as a matter of urgency and that the first defendant do pay the plaintiff's costs of and associated with this application on an indemnity basis. I will come back to that issue in a moment.
Having read the affidavit of Mr Davies in these proceedings, which is dated 26 May 2010, I am satisfied that there are now grounds to make an injunction in the broader terms that have been sought. On the previous occasion I declined to make an injunction in broader terms because I was not then satisfied that there was sufficient information before the court to lead me to a conclusion that Mr Saliba was likely to lodge future caveats which would be unmeritorious. However, notwithstanding that the caveat that was lodged on 24 May was in any event in breach of the order I made on 19 May, I have also looked at the terms of it and it seems to be relying on exactly the same grounds that on 19 May I held not to be sufficient to establish a caveatable interest.
In these circumstances, it does now appear to me that there are good grounds upon which the plaintiff could be concerned that Mr Saliba, the first defendant, will or is likely to lodge further caveats in respect of the secured properties, they being those listed in annexure A to the minute of proposed orders. In those circumstances, in my view there is a proper basis for amending the orders to grant an injunction in the terms sought. The balance of convenience also favours the plaintiff.
If Mr Saliba is of the firm view that he has some basis for lodging a caveat, the orders would permit him to do so only if he came back to this court on 72 hours' notice and sought an amendment to the orders. He could, therefore, seek to vindicate an interest which he wishes to caveat by making application to this court. He would otherwise be unable to lodge any further caveats in respect of these properties.
In regards to the orders sought in respect of contempt of this court and contempt of the orders that I made on 19 January, Mr Saliba has advanced some reasons for why he breached that order, in particular that he was under a state of misunderstanding as to their meaning. Given the consequences that can potentially flow from a contempt of court, including commitment, I have indicated to Mr Saliba that I would not deal with that matter unless he had the benefit of legal advice. In any event, the plaintiff has asked that that particular application be amended sine die and I am inclined to do that at this stage, though I think it is not appropriate that that application would remain on foot and unresolved indefinitely and at some point it will need to be either brought on and dealt with or discontinued by the plaintiff.
As to the final order, that costs of this application be on an indemnity basis, costs on an indemnity basis should only be ordered in extraordinary circumstances, particularly where a defendant is self‑represented. However, I am satisfied that the basis for ordering costs on an indemnity basis is established in this case because it is apparent on the information provided to me that the plaintiff has been put to the expense, needlessly, of coming back to this court seeking the removal of a caveat that should not have been lodged in any event. In those circumstances, it seems to me that fairness requires that the plaintiff be properly indemnified for any costs relating to these proceedings.