Westpac Banking Corporation v Davey - [2018] WASC 189

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   WESTPAC BANKING CORPORATION -v- DAVEY [2018] WASC 189
CORAM:   CHANEY J
HEARD:   8 JUNE 2018
DELIVERED          :   22 JUNE 2018
PUBLISHED           :   22 JUNE 2018
FILE NO/S:   CIV 1710 of 2018
BETWEEN:   WESTPAC BANKING CORPORATION
Plaintiff
AND
JOHN WALTER DAVEY
First Defendant
IAN ROGER AINSWORTH
Second Defendant
THE REGISTRAR OF TITLES
Third Defendant

Catchwords:

Real property - Caveats - Whether caveats may have an interest in land - Caveat lodged by registered proprietor

Legislation:

Transfer of Land Act 1893, s 138(2)

Result:

Orders for removal of caveats

Category: B

Representation:

Counsel:

Plaintiff	:	Mr B C Smith
First Defendant	:	In person
Second Defendant	:	In person
Third Defendant	:	No appearance

Solicitors:

Plaintiff	:	Dentons Australia
First Defendant	:	In person
Second Defendant	:	In person
Third Defendant	:	No appearance

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

Bashford v Bashford [2008] WASC 138
Bateson v Jones [2013] WASC 8
Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42
Davey v Quigley [2018] WASC 107
Gangemi v Gangemi [2009] WASC 195
Great West Permanent Loan Co v Friesen [1925] AC 208
KWS Capital Pty Ltd v Love [2013] WASC 294
Martin v Official Trustee in Bankruptcy [1990] Tas R 65
McCourt v National Australia Bank Ltd [2010] WASC 121
Sinclair v Hope Investments Pty Ltd [1982] 2 NSWLR 870
Westpac Banking Corporation v Murray Riverside Pty Ltd [2013] WASC 433
Wichniewicz v Registrar of Titles [2014] WASC 18

CHANEY J:

This matter comes before me by way of originating summons seeking an order pursuant to s 138(2) of the Transfer of Land Act 1893 (WA) for the removal of two caveats, being caveat N732466 lodged by the first defendant, Mr Davey, and caveat N815934 lodged by the second defendant, Mr Ainsworth.
Mr Davey and Mr Ainsworth seek an adjournment of the application pending the completion of an appeal in which Mr Davey is one of the appellants. The appeal is against a decision of the Chief Justice delivered on 28 March 2018 in which the Chief Justice dismissed an application by Mr Davey and two others for judicial review (judicial review application).[1] The judicial review application was brought against five defendants and related to what were said to be reviewable decisions by each of the defendants. One of the matters of complaint in the judicial review proceedings was a decision by the acting master of this court in which the plaintiff was granted summary judgment for possession of the properties the subject of the caveats.
[1] Davey v Quigley [2018] WASC 107.
The judicial review application was dismissed on the basis that none of the claims had any reasonable prospect of success. In relation to the summary judgment order of the acting master, the application for judicial review was found to have no reasonable prospects of success because the acting master was exercising the jurisdiction of the Supreme Court, a jurisdiction not amenable 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: [2018] WASC 189
Decision Date: 22 JUNE 2018

CaseChat Overview and Summary

Westpac Banking Corporation lodged an application under section 138(2) of the Transfer of Land Act 1994 (WA) to determine whether Mr Davey's caveat was valid and should be extended. Mr Davey had lodged a caveat over land that he owned. The Supreme Court of Western Australia was required to determine if Mr Davey's caveat was valid and if it should be extended. The central issue was whether the caveator, Mr Davey, could demonstrate a caveatable interest in the land. The court had to consider if the caveator's claim for an interest in the property raised a serious question to be tried or whether it might have substance. Additionally, the court needed to consider the strength of the caveator's claim and whether the caveat should be extended.

The court held that the principles applicable to an enquiry under section 138(2) of the Transfer of Land Act 1994 (WA) are the same as those applicable to an application to extend the operation of a caveat under section 138C(2) of the same Act. The court noted that there is limited power for it to allow the terms of the caveat to be amended. The caveator must satisfy the court that, on the evidence presented to the court, his claim for an interest in the property raises a serious question to be tried or whether it may have substance. Even if a claim may have substance, the caveat might not be extended having regard to factors including the apparent strength or weakness of the caveator's claim. The court also held that a caveatable interest must exist at the time a caveat is lodged. A caveat cannot be lodged to protect an interest in the future.

The court found that Mr Davey's caveat was valid and should be extended. The court held that Mr Davey, as the registered proprietor of the land, could lodge a caveat in limited circumstances to enjoin the registration of a particular dealing or particular kind of dealing. The court found that Mr Davey's claim had substance and that his interest in the land was capable of protection by caveat. The court also found that the caveat should be extended to protect Mr Davey's interest in the land.

The court ordered that Mr Davey's caveat be extended to protect his interest in the land.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

An application under s 138(2) of the Transfer of Land Act involves the question of whether or not the caveator can demonstrate that they may have an interest in land which is capable of supporting a caveat. The caveator must satisfy the court that, on the evidence presented to the court, his claim for an interest in the property raises a serious question to be tried or whether it may have substance.[2] Even if a claim may have substance, the caveat might not be extended having regard to factors including the apparent strength or weakness of the caveator's claim.[3][2] Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42 [20] ‑ [21].[3] KWS Capital Pty Ltd v Love [2013] WASC 294 [32] ‑ [36] (Edelman J). A caveatable interest must exist at the time a caveat is lodged. A caveat cannot be lodged to protect an interest in the future.[4][4] Martin v Official Trustee in Bankruptcy [1990] Tas R 65, 69; Gangemi v Gangemi [2009] WASC 195 [38] ‑ [45]. The principles applicable to an enquiry under s 138(2) are the same as are applicable to an application to extend the operation of a caveat under s 138C(2). In either case, there is limited power for the court to allow the terms of the caveat to be amended. Amendment may be permitted so as to enable the caveat to better and more fully express the interest that is claimed. Amendment is not permitted to alter the interest claimed so as to claim a different interest.[5][5] Bashford v Bashford [2008] WASC 138 [51] and the cases there referred to. Mr Davey is the registered proprietor of the land over which his caveat is lodged. Although there are conflicting authorities, it has been held that a registered proprietor may in limited circumstances lodge a caveat to enjoin the registration of a particular dealing or particular kind of dealing.[6] Sinclair Investments Pty Ltd concerned a caveat to forbid registration of a transfer executed by a mortgagee pursuant to a voidable transaction. The equity was said to arise from the charge created by the registered proprietor by entering into the mortgage and the action of the mortgagee in entering into the voidable contract. Great West Permanent Loan Co v Friesen held that the lien of an unpaid vendor could support a caveat forbidding dealings with the land by the purchaser. In Wichniewicz v Registrar of Titles,[7] Edelman J noted that it has been observed on several occasions in this court that there is a conflict in authority concerning whether a registered proprietor's equity of rescission can support a caveat.[8][6] Sinclair v Hope Investments Pty Ltd [1982] 2 NSWLR 870, 872; Great West Permanent Loan Co v Friesen [1925] AC 208, 216.[7] Wichniewicz v Registrar of Titles [2014] WASC 18.[8] McCourt v National Australia Bank Ltd [2010] WASC 121 [8] ‑ [12] (Murphy J); Westpac Banking Corporation v Murray Riverside Pty Ltd [2013] WASC 433 [21] (Beech J). In Wichniewicz, the second defendant, which was the Australia and New Zealand Banking Group Ltd, made submissions, for the purpose of the application being considered by the court, on the basis that the plaintiff had a claim which had or may have substance, and accordingly the court proceeded on the assumption that the plaintiff has, or may have, an estate or interest in the land which was capable of protection by caveat. In McCourt v National Australia Bank Ltd[9] and Westpac Banking Corporation v Murray Riverside Pty Ltd, the court noted the differing views expressed in the cases as to whether a registered proprietor could lodge a caveat, but did not find it necessary to resolve that question.