Warren v Lawton [No 3]

Case [2016] WASC 285

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   WARREN -v- LAWTON [No 3] [2016] WASC 285

CORAM:   LE MIERE J

HEARD:   3-7, 11 & 20 AUGUST, 23 OCTOBER 2015

DELIVERED          :   7 SEPTEMBER 2016

FILE NO/S:   CIV 1372 of 2010

MATTER                :Claim for an order for the dismissal of 1st and 2nd named first defendant's application under Section 138B of the Transfer of Land Act 1893 for the removal of caveat

BETWEEN:   MARK DONALD WARREN

Plaintiff

AND

JOSEPH FRANCIS LAWTON
MOLLY ELIZABETH HALL
First Defendants

REGISTRAR OF TITLES
Second Defendant

Catchwords:

Contracts - Collateral contract - Where no promissory statement - Turns on own facts

Contracts - Entire agreement declaration - not appropriate - Turns on own facts

Contracts - Implied term for peace and tranquillity - Term not so obvious to be implied - Implied term incapable of clear expression - Turns on own facts

Contracts - Implied term to not unreasonably withhold consent - Where consent withheld arbitrarily for collateral purpose - Turns on own facts

Equity - Fiduciary duty - Duty to act in good faith and fairly deal - Conflicting personal interest - No fiduciary relationship established - Turns on own facts

Equity - Rectification - Common intention - Mistake in contract - Where precise correction possible - Turns on own facts

Equity - Unconscionable dealing - Improvident transaction - Where no special disability - Turns on own facts

Evidence - Approach to inadmissible evidence where no objection is taken

Evidence - Credibility and reliability of witness - Turns on own facts

Property law - Alienation - Public policy of free alienability of land - Unlawful restraint on alienation - Where restraints make land inalienable - No valid collateral purpose - Turns on own facts

Property law - Sale order under s 126 of Property Law Act - Whether sale is more beneficial than division of land - Factors to consider in exercise of discretion - Turns on own facts

Property law - Caveats - Caveatable interest - Options and right of pre-emption - Turns on own facts

Tort - Trespass - Right of owner and tenant to sue for trespass - Part of claim statute barred - Vicarious liability for trespass - Whether direction or authorisation to do acts or direction or authorisation to do things leading to physical necessity to do acts - Damages awarded - Turns on own facts

Legislation:

Conveyancing Act 1929 (NSW) s 66G
Limitation Act 2005 (WA)
Partition Act 1878 (WA)
Property Law Act 1969 (WA), s 126, s 127
Town Planning Act 1928 (WA), s 20
Trade Practices Act 1974 (Cth)
Transfer of Land Act 1893 (WA), s 136B, s 137, s 140

Result:

Plaintiff's claim dismissed
Second named first defendant's counterclaim successful in part

Category:    B

Representation:

Counsel:

Plaintiff:     Mr M J McPhee

First-named First Defendant  :     No appearance

Second-named First Defendant   :    Mr I A Morison

Second Defendant         :     No appearance

Solicitors:

Plaintiff:     M J McPhee Barrister and Solicitor

First-named First Defendant  :     No…

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Warren v Lawton [No 3] [2016] WASC 285
Case
[2016] WASC 285
Decision Date

CaseChat Overview and Summary

In the matter of Warren v Lawton [No 3], the parties involved were Warren and Lawton, with the nature of the dispute centred on a contract and various associated legal claims. The case was heard in a court which adjudicated on the issues raised, providing a comprehensive judgment addressing the multifaceted legal challenges presented by the parties. The primary legal issues that the court was required to decide included the existence of a collateral contract, the enforceability of certain clauses in the contract, the applicability of fiduciary duties, and the appropriateness of a sale order under the Property Law Act. The court also needed to consider issues related to rectification, unconscionable dealing, and trespass.

The court's reasoning was meticulous, addressing each issue with detailed analysis. The court found that certain collateral contracts and implied terms were not applicable, given the specific facts of the case. It concluded that there was no fiduciary relationship between the parties and that the doctrine of rectification was not suitable. The court also determined that the defendant had not acted unconscionably and that the plaintiff's trespass claim was partially successful, resulting in a limited damages award. Furthermore, the court considered various equitable and property law principles, including the alienability of land and the factors to be considered when ordering a sale under the Property Law Act. The court exercised its discretion and found that a sale order was warranted.

The final orders included a declaration that certain clauses in the contract were invalid and unenforceable as they constituted an unlawful restraint on alienation. The court also granted an order for rectification of the contract, and ordered that the property be sold under section 126 of the Property Law Act. Additionally, the court awarded damages for trespass and ruled that certain costs should be taxed without regard to the limits specified in the relevant items of the Scale, due to the complexity and difficulty of the case. The court also deprived the defendant of some of her costs due to her unsuccessful claims.

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

The function of the court in making a special costs order under s 280(2) is limited to setting the parameters within which the taxing officer will tax the relevant bill, and providing any specific directions which will assist the taxing officer to assess the quantum of the costs to be allowed on taxation. The quantum of costs to be allowed is to be determined by taxation. Therefore, the powers conferred upon the court by s 280(2) are to be exercised as a matter of impression rather than science, taking into account the greater expertise of taxing officers in fixing the amount of costs properly and reasonably allowed: Electricity Generation [4] (Martin CJ). Ms Hall submitted that due to the unusual difficulty and complexity, the costs allowable under the relevant costs determination would be inadequate. Ms Hall sought an order permitting the taxing officer to assess the costs without regard to the limits applicable to items 17 (preparation of case), 20 (trial) and 33 (other work) of the Scale and that Ms Hall have liberty to apply under item 34 (travel). Item 33 does not have any limit, and counsel for Ms Hall at the hearing submitted that there should instead be an order that Ms Hall have liberty to apply under item 33 of the Scale. My role is to set the parameters within which the taxing officer will tax the relevant bill and to provide any specific directions to assist the taxing officer to assess the quantum of the costs to be allowed on taxation. This purpose would not be served by including an order that Ms Hall should have liberty to apply under item 33 and item 34 of the Scale. I have not been asked to order that it is open for Ms Hall to include claims under those items in the bill. It remains open for Ms Hall to include amounts claimed under those items in any bill and that is a matter for the taxing officer. I will not order that Ms Hall have liberty to apply under item 33 and 34 of the scale for that reason. I have found that due to the introduction of discrete issues on which Ms Hall was unsuccessful she should be deprived of some of her costs. However, it is still open for me to find that because of the unusual difficulty or complexity that a special costs order should be made to raise the limits available under the Scale. Mr McAuliffe stated that the following factors evidenced the unusual difficulty or complexity of this matter. The number of issues arising from the facts, Mr Warren's conduct during the proceedings, the number of interlocutory applications and hearings, the number of mediations, the period over which the matter in dispute spread, the failure of Mr Warren to provide full discovery and the number of court documents filed during the proceedings. A number of observations should be made about these factors. Firstly, there were a large number of claims in these proceedings. These included some claims brought by Ms Hall and on which Ms Hall was unsuccessful, being an issue about whether there was a collateral contract to protect the peace and tranquillity of the Lawton Hall Lot, whether Mr Warren had engaged in unconscionable dealing or whether he had breached any duties or fiduciary duties owing to Mr Lawton and Ms Hall. However, the issues also included a successful claim for rectification of the contract, a declaration that cls 6, 13, 14 and 15 of the Contract of Sale are an invalid restrain on alienation and unenforceable. I also found that if cl 14 was valid, it would be subject to the proviso that the vendor would not unreasonably withhold consent. Ultimately I also found that there should be an order for sale pursuant to the Property Law Act s 126. I also found that Mr Warren was liable for some acts of trespass on the Lawton Hall Lot although I only awarded damages of $500 for that trespass. Further Mr Warren claimed, unsuccessfully, that there should be a declaration that the contract of sale represents the whole of the agreement between the parties and that there be a declaration that he had a caveatable interest in the Lawton Hall Lot. This sample shows the breadth of the issues that were argued by the parties.