Wright v Brown - [2023] WASC 245

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   WRIGHT -v- BROWN [2023] WASC 245
CORAM:   ARCHER J
HEARD:   22 JUNE 2023
DELIVERED          :   22 JUNE 2023
FILE NO/S:   CIV 1468 of 2023
BETWEEN:   BRADLEY WRIGHT
Plaintiff
AND
IRENE LORRAINE BROWN
First Defendant
REGISTRAR OF TITLES
Second Defendant

Catchwords:

Caveats - Application to extend operation of a caveat - Interest vested in trustee in bankruptcy - Bankruptcy not annulled - No caveatable interest - No power to amend the caveat to claim a different interest - Not appropriate to give leave to issue a fresh caveat

Legislation:

Bankruptcy Act 1966 (Cth), s 58
Transfer of Land Act 1893 (WA), s 137, s 138B, s 138C, s 138D

Result:

Application to extend caveat dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	In person
First Defendant	:	D P H Engelter
Second Defendant	:	No appearance

Solicitors:

Plaintiff	:	Hotchkin Hanly
First Defendant	:	Williams & Hughes
Second Defendant	:	Not applicable

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

Bashford v Bashford [2008] WASC 138
Bateson v Jones [2013] WASC 8
Batterham v Nauer, in the matter of Peter James Batterham [2019] FCA 485
Bride v The Registrar of Titles [2015] WASC 11
Cirillo v Citicorp Australia Ltd (2004) 236 LSJS 24; [2004] SASC 293
Professional Services of Australia Pty Ltd v Mila Properties Pty Ltd [2004] WASC 30
Webster v Ashcroft [2012] 1 WLR 1309; [2011] EWHC 3848 (Ch)
Zorostar Pty Ltd v Arian Investments Pty Ltd [2016] WASC 348

ARCHER J:

(This judgment was delivered extemporaneously on 22 June 2023 and has been edited to correct matters of language, add headings, and include complete references.)

Introduction

The plaintiff applied for an order extending the operation of a caveat P452669 over a property at 6 Taupo Glade, Joondalup. The first defendant, the mother of the plaintiff, is the registered proprietor of that property.
The first defendant opposed the extension on several grounds. The first of those was that the interest claimed by the plaintiff arose prior to the plaintiff's bankruptcy and that therefore, by law, any such interest remained with the trustee in bankruptcy, the Official Trustee.
The first defendant sought a preliminary determination of the effect of the bankruptcy. The plaintiff, who was unrepresented, ultimately did not object to this. I listed the preliminary issue for hearing on 22 June 2023.
On 19 June 2023, the plaintiff emailed submissions to the court. In his submissions, he did not seek to argue that, if he had an interest before he was declared bankrupt, he nevertheless retained it. Instead, he asserted that he obtained an interest in the property after he was discharged from bankruptcy. As will be seen, the basis of this claimed interest was not the same as the basis of the interest he had claimed in the caveat.
For the reasons that follow, I would not make an order that the caveat be extended.
In short, any interest held by the plaintiff prior to his bankruptcy remains with the…

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 Wright v Brown

Details

AGLC: Wright v Brown [2023] WASC 245
Case: [2023] WASC 245
Decision Date

CaseChat Overview and Summary

In the case of Wright v Brown, the plaintiff, Bradley Wright, sought an extension of a caveat over a property at 6 Taupo Glade, Joondalup. The first defendant, Irene Lorraine Brown, opposed the extension on several grounds, including that any interest claimed by the plaintiff arose prior to his bankruptcy and therefore remained with the trustee in bankruptcy, the Official Trustee. The plaintiff, who was unrepresented, ultimately did not object to a preliminary determination of the effect of the bankruptcy. The court found that any interest held by the plaintiff prior to his bankruptcy remains with the Official Trustee, and the interest claimed by the plaintiff in the caveat arose prior to his bankruptcy. Consequently, the plaintiff could not have a caveatable interest in the property based on an alleged interest that arose prior to his bankruptcy. Furthermore, the court considered that it could not and should not amend the caveat to reflect the interest now sought to be relied upon by the plaintiff. The court also rejected a request from the Official Trustee to adjourn the matter for eight weeks. The application to extend the caveat was dismissed, and the first defendant was restrained from creating, disposing of, or dealing with any estate or interest in the property until 4:00 pm on 29 June 2023, unless the creation, disposal, or dealing was expressly made subject to any proprietary estate or interest which the Official Trustee may have in the property.

Orders