Woodley v Woodley

[2015] WASC 392

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   WOODLEY -v- WOODLEY [2015] WASC 392

CORAM:   TOTTLE J

HEARD:   29 SEPTEMBER 2015

DELIVERED          :   29 SEPTEMBER 2015

PUBLISHED           :  19 OCTOBER 2015

FILE NO/S:   CIV 2489 of 2015

BETWEEN:   TERRY RAY WOODLEY

Plaintiff

AND

WAYNE CHARLES WOODLEY
Defendant

Catchwords:

Application for extension of caveats - Turns on own facts

Legislation:

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

Result:

Application adjourned
Registrar of Titles joined as second defendant
Injunction granted restraining removal of caveats

Category:    B

Representation:

Counsel:

Plaintiff:     In person

Defendant:     Mr P Redding

Solicitors:

Plaintiff:     In person

Defendant:     Redding & Associates

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

Bashford v Bashford [2008] WASC 138

Meynert v Leafdale Pty Ltd [2005] WASC 102

TOTTLE J: 

(This judgment was delivered extemporaneously on 29 September 2015 and has been edited from the transcript.)

1. The plaintiff applies, by an originating summons issued on 17 September 2015, for orders extending the operation of two caveats lodged against real property registered in the name of the defendant.  The first caveat is numbered N061960 and is registered against the title of the property commonly known as 16 Fitzpatrick Street, Waroona.  The title details of that property are Lot 25, Diagram 52665, Certificate of Title Vol 1470, Folio 894.

2. The second caveat is numbered N061961 and is registered against the title of the property commonly known as 14 Fitzpatrick Street, Waroona, the title details of which are Lot 26, Diagram 52665, Certificate of Title Vol 1470, Folio 895. 

3. The caveats are absolute caveats and each was lodged on 9 July 2015.  Each caveat identifies the estate or interest being claimed as 'an equitable interest or as beneficial co-owner'.  Each caveat is supported by a statutory declaration made by the plaintiff on 9 July 2015.  Each of the statutory declarations is in identical terms.

4. Before proceeding further, I should say something of the procedural history of this matter.  The application first came before me on 22 September 2015.  On that occasion, the plaintiff was present and appeared in person.  The defendant was in the hearing room but was not represented.  The plaintiff informed me that the defendant and the defendant's solicitors had only been served with the papers, or some of them, at least, earlier that day or, indeed, in the early hours of the morning of 22 September.

5. At the hearing on 22 September, I declined to make any orders, save that the plaintiff serve the papers upon the defendant and his solicitors, and I directed that any further affidavit evidence relied upon by the plaintiff be filed and served promptly.  The matter was adjourned and came back on for hearing today, that being the first occasion on which the defendant's solicitors could attend and make submissions.  The caveats are due to lapse tomorrow, 30 September 2015.

6. The plaintiff is one of three named executors under the wills of his parents.  The other executors are two of his brothers.  There are separate proceedings in this court being case managed by Pritchard J in which the principal issue to be determined is in whose name is the grant of probate in respect of the plaintiff's parents' estate to be made.  I should add that the defendant is also a brother of the plaintiff.

7. In the statutory declarations the plaintiff referred to real estate owned by his parents, to their wills, their passing and their estates.

8. The statutory declarations contained paragraphs which read as follows:

   18.I have made significant financial contributions and spent considerable time and effort in order to preserve and maintain the property which is an asset of the deceased estate of Shirley Woodley.

   27.The Will of Thomas Ross Woodley and Shirley Grace May Woodley both contain a testamentary trust and, as an eligible beneficiary of either trust, I claim an equitable estate or interest in the property and also generally as a beneficiary of the resulting or constructive trust in the property.

   28.I fully expect to be granted Probate in its Solemn Form.  It is prudent of me in the performance of my fiduciary duties as an Executor of the unproved Will of Shirley Grace May Woodley to place a Caveat upon the property to protect the interests of the Estate and to ensure preservation and maintenance of the assets of that estate and protect myself against claims of being negligent.

9. The 'property' referred to in one statutory declaration was 14 Fitzpatrick Street and in the other the 'property' was 16 Fitzpatrick Street.

10. In these proceedings, the plaintiff has sworn two affidavits.  The first was sworn on 15 September 2015 and the second was sworn on 24 September 2015.  Those affidavits are directed towards establishing that the estate of the plaintiff's late mother, Shirley Woodley, has an interest in each of the properties, 14 and 16 Fitzpatrick Street, Waroona. 

11. Two other bases upon which the plaintiff claims an interest in the property have been advanced.  They are, first, the plaintiff claims that he has expended money and time preserving each of the properties.  It is apparent from what the plaintiff has told me from the bar table that that money has been spent by him in his capacity as a prospective executor of the estate of his late mother and has been spent since his late mother passed away. 

12. Secondly, the plaintiff asserts that he has an equitable interest, or an interest as a beneficial co-owner, in the properties on the basis that his father promised him that these properties would be left to him: see par 7 of the plaintiff's affidavit of 24 September 2015, which was in the following terms:

    In about 2002, Dad came to my office to do his quarterly BAS Form for the ATO.  Dad said to me, 'I want to give you the units.'  I replied to Dad, 'Whenever you are ready let me know.'

13. In submissions the plaintiff referred to the doctrine of promissory estoppel as a basis for establishing an interest in the properties. 

14. The plaintiff claims to be entitled to register and maintain his caveats on the basis that he is claiming as a beneficiary under a will.  That is clear from his statutory declarations.

15. As a consequence the caveats are not 's 138A caveats' (see s 138A of the Transfer of Land Act 1893 (WA)) and therefore are not caveats to which the processes outlined in s 138B and s 138C of the Transfer of Land Act 1893 apply.

16. The notices given to the plaintiff by Landgate, warning him that his caveats would lapse on 30 September 2015 were dated 7 September 2015 and were, on their face, notices issued pursuant to s 138B of the Transfer of Land Act 1893. Those notices were tendered as exhibits 1 and 2. The notices were issued on the basis that the caveats lodged by the plaintiff were s 138A caveats.

17. In my view, that is not correct. In my view, the caveats were not s 138A caveats and, thus, the procedure set out in s 138B and s 138C does not apply to the caveats lodged by the plaintiff. Thus, I am not satisfied that the notices issued by Landgate, purportedly under s 138B of the Transfer of Land Act 1893, were validly issued. Consequently, I am not satisfied that the power to make orders under s 138C, extending the operation of the caveats, has arisen.

18. On that basis, and for those reasons, I am not prepared to make orders extending the operation of the caveats. In my view, it would not be proper for me to purport to exercise a power to extend to the caveat, pursuant to s 138C of the Transfer of Land Act, if I consider, as I do, that that power has not arisen.  I should say that Mr Redding, who appeared for the defendant, in submissions shared the concerns that I had expressed as to whether the notices issued by Landgate were validly issued.

19. For the sake of completeness I record that I have considered whether the plaintiff has satisfied me that his claims to an interest in each of these properties of the nature set out in the respective caveats. that is, 'an equitable interest' or 'as beneficial co-owner', has substance. 

20. In approaching this issue, I adopt and am guided by the statement of the relevant principles set out by Beech J in his Honour's reasons in Bashford v Bashford [2008] WASC 138 at [42] - [56] inclusive.

21. The fundamental difficulty which the plaintiff's claims face is this.  The authorities make it clear that the beneficiary of an estate does not have a proprietary interest in any of the specific assets of the estate. I rely for authority for principle on the judgment of Master Newnes, as he then was, in the decision of Meynert v Leafdale Pty Ltd [2005] WASC 102 and, in particular, the passages at [20] and following.

22. In this case, the plaintiff's principal claim to an interest in the properties is dependent upon his being a beneficiary of the will of his late mother but for the reasons to which I have referred, as a beneficiary of the estate he does not have a proprietary interest in any of the assets of the estate, specifically an interest in the two properties on the basis of any kind of estoppel.

23. In formulating the views that I have just expressed, I do not overlook the fact that there is a very live issue as to whether 14 and 16 Fitzpatrick Street, Waroona form part of the estate of the parties' late mother.  Nothing that I have said in the course of these reasons should be taken as expressing any view as to the ultimate outcome of that controversy.  I have approached the matter on the basis that, even if the plaintiff was able to establish that the properties form part of his late mother's estate, that would not entitle him, in his capacity as a beneficiary, to a proprietary interest in the properties capable of being protected by a caveat.

24. I should deal briefly with the other bases upon which the plaintiff has suggested that he may be entitled to a lodge a caveat.  First, the plaintiff says that he has expended funds and time and effort in maintaining the properties since his mother died.  In my view, these facts do not entitle the plaintiff to a proprietary interest that can be protected by a caveat. 

25. Secondly, the plaintiff asserts that his father made promises to him which constitute some form of estoppel which entitle him to claim an interest in the properties.  Several points can be made about that claim.  The first is that, on its face, it appears to be inconsistent with the plaintiff's primary position that the properties form part of his mother's estate.  Secondly, par 7 of the plaintiff's affidavit of 24 September 2015, to which I have already referred, does not provide an adequate foundation for a claim to an equitable interest or an interest as a co-owner in these properties.

26. The position, however, as I consider it to be, is that the caveats should remain registered against the titles of the properties until they are dealt with properly under the provisions of the Transfer of Land Act 1893 and I will hear the parties in relation to the orders that should be made in the light of the reasons which I have given.