Watson v Gardner
[2015] WASC 192
•27 MAY 2015
WATSON -v- GARDNER [2015] WASC 192
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 192 | |
| Case No: | CIV:1744/2015 | 27 MAY 2015 | |
| Coram: | MITCHELL J | 27/05/15 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | PETER JOHN WATSON JILLIAN AMY WATSON ROBIN KELVIN GARDNER REGISTRAR OF TITLES |
Catchwords: | Real property Application to extend caveat No proprietary interest in land subject to caveat |
Legislation: | Transfer of Land Act 1893 (WA), s 138C |
Case References: | Bashford v Bashford [2008] WASC 138 Bride v Registrar of Titles [2015] WASC 11 Gangemi v Gangemi [2009] WASC 195 Rowe v Albany Chalets Pty Ltd [2015] WASC 85 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- JILLIAN AMY WATSON
Applicants
AND
ROBIN KELVIN GARDNER
First Respondent
REGISTRAR OF TITLES
Second Respondent
Catchwords:
Real property - Application to extend caveat - No proprietary interest in land subject to caveat
Legislation:
Transfer of Land Act 1893 (WA), s 138C
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicants : Ms A J Aldrich
First Respondent : In person
Second Respondent : No appearance
Solicitors:
Applicants : Alison & Associates (Legal) Pty Ltd
First Respondent : In person
Second Respondent : No appearance
Case(s) referred to in judgment(s):
Bashford v Bashford [2008] WASC 138
Bride v Registrar of Titles [2015] WASC 11
Gangemi v Gangemi [2009] WASC 195
Rowe v Albany Chalets Pty Ltd [2015] WASC 85
1 MITCHELL J: On 14 May 2015, the Registrar of Titles issued a notice under s 138B of the Transfer of Land Act 1893 (WA) (TLA) indicating that a caveat lodged by the applicants in respect of land in Darlington in the Shire of Mundaring would lapse at midnight on 5 June 2015, unless an extracted order of this court extending the caveat was lodged with the Registrar of Titles before that date.
2 The Darlington land is lot 20 on plan 6610, being the whole of the land contained in certificate of title volume 1241 folio 105. The first respondent is the registered proprietor of an estate in fee simple in the Darlington land.
3 On 19 May 2015, the applicants applied to this court under s 138C of the TLA for an order extending the caveat.
4 Section 138C(2) of the TLA empowers me to make an order extending the caveat 'if satisfied that the caveat has or may have substance'. If I am not satisfied that the caveat has, or may have, substance then I must dismiss the application for an extension of the caveat.
5 The applicants lodged the caveat on 30 October 2013. The estate or interest claimed in the Darlington land was an 'equitable estate or interest as mortgagee of the fee simple'. The interest was claimed by virtue of a 'loan agreement dated 14 October 2010 made between the caveator and the caveatee securing the repayment of all money advanced or to be advanced by the caveator to the caveatee together with interest thereon'. The first respondent is the 'caveatee' referred to in the applicants' caveat.
6 The applicants have filed an affidavit which annexes the loan agreement dated 14 October 2010. However, that loan agreement is not an agreement between the applicants and first respondent. Rather, it is an agreement between the applicants and a Paul Standish. The first respondent is not a party to the loan agreement.
7 By the loan agreement, the applicants agreed to lend Mr Standish $35,000. The date of repayment was expressed to commence on 14 October 2010 'at irregular intervals until the debt is extinguished'. The rate of interest specified was 25% per annum for the first year of the loan, and 12.5% per annum compounded monthly thereafter. The loan agreement did not actually specify any date for the payment of interest.
8 There was no term of the loan agreement creating any interest in any property.
9 I have also been provided with a Deed of Guarantee between the applicants, the first respondent and Shirley May Gardner. The first respondent and Ms Gardner agreed to guarantee Mr Standish's repayment of the loan and other moneys owing or payable by Mr Standish under the loan agreement. Clause 5 of the Deed of Guarantee provides:
For the purpose of better securing this Deed the Guarantors pledge as security all their interest in the Property.
10 However, the 'Property' specified in the Deed of Guarantee is land in Flagstaff Hill, South Australia.
11 I can see no arguable basis on which the loan agreement or Deed of Guarantee give the applicants any interest at all in the Darlington land. The first respondent was not even the owner of the Darlington land when the Deed of Guarantee was executed on 7 October 2010. He did not become the registered proprietor of the Darlington land until 7 September 2011. The Deed of Guarantee does not purport to charge any future property of the first respondent, or indeed any property other than the Flagstaff Hill land.
12 The applicants submit that as Mr Standish maintains an interest in the Darlington land as tenant (a fact of which there is no evidence) and, as one of the guarantors is registered proprietor of that land, an equitable interest has arisen for the benefit of the applicants in the Darlington land. Quite apart from the lack of evidence, I see no legal basis for that submission. No authority was cited which supported the proposition that an equitable interest in land could arise in those circumstances.
13 In Rowe v Albany Chalets Pty Ltd [2015] WASC 85 [18], I adopted what was said by Edelman J in Bride v Registrar of Titles [2015] WASC 11 [11] - [16] in relation to the principles to be applied by the court in dealing with an application under s 138C of the TLA. I shall not repeat that statement of principle. In essence, what is involved is considering the interrelated issues of whether the caveator's claim has, or may have, substance, and whether the balance of convenience favours retention of the caveat.
14 Also relevant are comments made by Murphy J in relation to the similar discretion under s 138 of the TLA in Gangemi v Gangemi [2009] WASC 195 [39] - [41]:
The onus is then on the caveator to establish the existence of an arguable caveatable interest in the land itself; by its nature a caveatable interest must be a proprietary interest in land: Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42, 50; Jandric v Jandric [1999] WASC 22.
The caveatable interest must exist at the time the caveat is lodged; it cannot be lodged to protect an interest in the future: Martin v Official Trustee in Bankruptcy [1990] Tas R 65, 69.
As a matter of form, the caveat must definitely, or explicitly, specify the estate or interest claimed. It must reveal to the registered proprietor the nature and extent of the claim: Leros Pty Ltd v Terara Pty Ltd [1992] HCA 22; (1992) 174 CLR 407, 422 - 423; Kerabee Park Pty Ltd v Daley [1978] 2 NSWLR 222, 231 - 232.
15 In the present case, there is absolutely no basis in the evidence for the applicants to assert any proprietary interest in the Darlington land. I am far from satisfied that the applicants' claim in that respect has, or may have, substance. It follows from this conclusion that the applicants' application for an extension of the caveat must be dismissed. The applicants' claim to an estate or interest in the Darlington land is entirely without foundation and, in those circumstances, removal of the caveat is appropriate: see Bashford v Bashford [2008] WASC 138 [49].
16 Even if I thought the applicants had, or might have had, an arguable case, I would not have been satisfied that the balance of convenience favoured the retention of the caveat over the Darlington land. There is evidence that the first respondent has entered into a contract for the sale of that land and would therefore be likely to suffer loss if the caveat prevents settlement of the sale. On the other hand, there is no evidence that the value of the Flagstaff Hill land is insufficient to secure the obligations which the applicants claim are owed by the first respondent and Ms Gardner under the Deed of Guarantee, the amount claimed being $67,210.50. There is, therefore, evidence of prejudice to the first respondent if the caveat is extended, and no evidence of prejudice to the applicants if the caveat is allowed to lapse.
17 For these reasons, the application to extend the caveat is refused.
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