Wilkin v Scardina

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.