WILKIN -v- SCARDINA [2003] WASC 144

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASC 144
Case No:	CIV:1670/2002	Heard:	17 JULY 2003
Coram:	WHEELER J	Delivered:	1/08/03
No of pages:	7	Judgment Part:	1 of 1
Result:	Application refused
Category:	A
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Parties:	GARY ROSS WILKIN CHRISTOPHER ANTHONY SCARDINA
Catchwords:	Caveat Application under s 138D of Transfer of Land Act 1893 (WA) for leave to lodge further caveats Principles
Legislation:	Transfer of Land Act 1893 (WA), s 138B, s 138D
Case References:	Nil Jandric v Jandric & Anor [1999] WASC 22 Midland Brick Company Pty Ltd v Welsh [2002] WASC 248

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : WILKIN -v- SCARDINA [2003] WASC 144 CORAM : WHEELER J HEARD : 17 JULY 2003 DELIVERED : 1 AUGUST 2003 FILE NO/S : CIV 1670 of 2002 BETWEEN : GARY ROSS WILKIN

Plaintiff

AND

CHRISTOPHER ANTHONY SCARDINA

Defendant

Catchwords:

Caveat - Application under s 138D of Transfer of Land Act 1893 (WA) for leave to lodge further caveats - Principles

Legislation:

Transfer of Land Act 1893 (WA), s 138B, s 138D

Result:

Application refused

(Page 2)

Category: A

Representation:

Counsel:

Plaintiff : Mr I T Blatchford

Defendant : Mr I L K Marshall

Solicitors:

Plaintiff : Greenland Brooksby

Defendant : Alison Camp

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

Nil

Case(s) also cited:

Jandric v Jandric & Anor [1999] WASC 22
Midland Brick Company Pty Ltd v Welsh [2002] WASC 248

(Page 3)

1 WHEELER J: This is an application pursuant to s 138D of the Transfer of Land Act for an order giving leave for the plaintiff to lodge a further caveat over the interest of the defendant in certain land in Geraldton. The history of this matter is as follows.

2 In 1991 the defendant and his parents became registered proprietors as joint tenants of the land in question, which appears to be a residential property. In 1998 the plaintiff agreed with the defendant and the defendant's wife that the plaintiff would sell to the defendant a business for the sum of $30,000 plus stock at valuation. The agreement for the sale of that business provided by way of special condition that payment of the purchase price, which was to be payable over a period of five years in instalments, was to be secured to the vendor by an absolute caveat over the interest of the defendant in the land.

3 Although there was some dispute in the affidavits of the parties as to whether the defendant understood at the time that the agreement contained such a condition, it is unnecessary to resolve this issue. The defendant's affidavits do not appear to go so far as to contain any material which would support a plea of non est factum, or of unconscionability, and it was conceded by the defendant's counsel that those matters were really irrelevant to the issues before me.

4 In July 1998 the defendant took over the business and…

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.

Continue reading Wilkin v Scardina

Details

AGLC: Wilkin v Scardina [2003] WASC 144
Case: [2003] WASC 144
Decision Date

CaseChat Overview and Summary

In Wilkin v Scardina, the plaintiff, Gary Ross Wilkin, sought leave from the Supreme Court of Western Australia to lodge a further caveat over a property owned by the defendant, Christopher Anthony Scardina. The original caveat, which had been lodged to secure payment of a debt owed by Scardina to Wilkin, had lapsed due to Scardina's notice under the Transfer of Land Act 1893 (WA). Wilkin argued that he had a caveatable interest and that the balance of convenience favoured the granting of leave. Scardina contended that the property had vested in the trustee in bankruptcy and that Wilkin was unable to enforce his security under the Bankruptcy Act. The court was required to determine whether the principles governing leave to permit a fresh caveat, as discussed in Colbran and Jackson, Caveats (1996), applied to section 138D of the Transfer of Land Act 1893 (WA).

The court held that the plaintiff had a caveatable interest, but the lapse of the caveat was a deliberate decision made by Wilkin based on his understanding of his interests at the time. The lapse occurred due to Wilkin's decision not to take steps to avoid it, rather than any oversight. The court found that there was no evidence of misrepresentation by Scardina that led Wilkin to this decision. The plaintiff's application for leave to lodge a further caveat was made almost three and a half years after the lapse of the original caveat, and there was no suggestion that the writ of fi fa, which protected Wilkin's interest, was inadequate. The court concluded that it was not appropriate to grant leave under section 138D in these circumstances.

The court refused Wilkin's application for leave to lodge a further caveat, finding that the balance of convenience did not favour the grant of leave. The court noted that Wilkin's interest was protected by the writ of fi fa, and the primary issue was the expense of renewing it. The court held that Wilkin could not seek the court's aid to avoid the consequences of a deliberate decision he made about three and a half years ago, in circumstances where his interest continued to be protected by an alternative means.

Orders