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 Official Trustee. The interest claimed by the plaintiff in the caveat arose prior to his bankruptcy. It follows that the claimed interest could not be the plaintiff's interest. In other words, the plaintiff could not have a caveatable interest in property based on an alleged interest that arose prior to his bankruptcy.
Further, I consider that I cannot and should not amend the caveat so as to reflect the interest now sought to be relied upon by the plaintiff.
Finally, the court received an email request yesterday from the Official Trustee to adjourn the matter for eight weeks. I will later explain why I have decided to reject that request.

Issues

The issues that arise are as follows:
1.Should the hearing be adjourned for eight weeks as requested by the Official Trustee?
2.What was the nature and extent of the interest claimed in the caveat?
3.Did that interest arise prior to the plaintiff becoming bankrupt?
4.If so, did the plaintiff have that interest at the time of lodging the caveat or was any such interest vested in the Official Trustee?
5.If the plaintiff did not have the interest claimed in the caveat at the time of lodging the caveat, can and should the caveat be amended to claim an interest that arose after the plaintiff was discharged from bankruptcy?
6.If not, should the plaintiff be given leave to file a new caveat?

Logically, the first issue, relating to the Official Trustee's request for an adjournment, needs to be resolved first. I consider that the request should be refused. However, it will be easier to explain why if I do so after addressing the other issues.

Alleged factual history

The plaintiff filed an affidavit in support of his application. The following summary comes from his affidavit. I acknowledge that, at this stage, I only have the plaintiff's untested version of events.
The property was initially owned by the plaintiff's parents as an investment property. When his parents separated, the property was transferred to his father, David Wright. The plaintiff had been living in the property when his parents separated in 2009/2010. After the separation, the plaintiff's father moved in with him.
After that time,[1] the plaintiff said he spent close to $300,000 renovating the house with his father's knowledge and permission. The work was done over an 18‑month period.
[1] See Affidavit of Bradley David Wright filed 11 May 2023 (Plaintiff's Affidavit) first paragraph numbered [10] and the plaintiff's oral statement on 12 May 2023.
On an unspecified date, the plaintiff moved out of the property, for about three years.[2]
[2] Plaintiff's Affidavit second paragraph numbered [9].
In 2013, the plaintiff paid $47,500 to the mortgage.
In 2015, the plaintiff paid $46,000 to the mortgage.
In 2016, the plaintiff and his partner, Chloe Debono, moved back into the property. His father was living there at the time. The plaintiff and his partner paid some money to help with the mortgage, and they shared outgoings and expenses.[3]
[3] Plaintiff's Affidavit [13].
The plaintiff asserted that he and his father had an understanding that, if his father sold the property, the plaintiff would be compensated for his contributions and investments.[4]
[4] Plaintiff's Affidavit [14].
In early 2017, the plaintiff's mother lent him $362,616.03, by paying a tax debt owed by the plaintiff's business.
Later in the year, his mother apparently became concerned about security for the loan.
Various members of the family discussed how to deal with this.
The plaintiff asserted that:[5]
21.To the best of my recollection, it was later in 2017 (after the Goldbreak Loan had been made) that there were discussions in the family about security for the Goldbreak Loan. We decided that the Property would be transferred to Lorraine as trustee as security for the repayment of the Goldbreak Loan, but she would agree to give control of the trust back to David when the loan had been repaid to her.
22.I drafted the document called 'Irrevocable Authority' so that Lorraine would be forced to give back the Property to David after the Goldbreak Loan was repaid. I trusted both of my parents and we were on good terms with them at this time. I did not believe at that time they would take advantage of me. Annexure 15 is a true copy showing proof of creation. Lorraine claims in her affidavit she created this document, that is not true.
23.I did not add myself on the irrevocable order due to bankruptcy proceedings, I instead added my wife as beneficiary believing this would protect my interests. It was also the deal with My mother that as soon as I repaid the ATO loan the house would be transferred back to David Wright and I would reimburse David for his equity and Chloe would take control of the property trust.
[5] Plaintiff's Affidavit [21] ‑ [23].
On 11 December 2017, the plaintiff's mother, as trustee for 'Blue Sky', made an offer in the standard REIWA form to purchase the property. The offer was accepted the same day.[6]
[6] Affidavit of Chloe Alyce Debono filed 11 May 2023 (Ms Debono's Affidavit), Annexure 5.
The Trust Deed is dated 19 December 2017. The copy annexed to the plaintiff's affidavit is unsigned.[7]
[7] Plaintiff's Affidavit, Annexure 24.
On 20 December 2017, the Irrevocable Authority was signed by the plaintiff's mother.
The plaintiff said that, in order to get approval for the loan for the property, his mother needed to show a rental income. He asserts that his partner signed a rental agreement for that purpose. He claims, in effect, that the rental agreement was a sham, designed to lead the bank to falsely believe that there was a rental income so that the bank would grant the loan.[8]
[8] Plaintiff's Affidavit [27] ‑ [29] and the second paragraph [27] on page 6 and the second [28] on page 7.
The plaintiff further said:[9]
[My mother] always understood, as I did, that she held the Property only for security purposes. However, the problem was that she changed the deal so that the Property was not only security for the Goldbreak Loan (as the Irrevocable Authority stated), but also became leverage to ensure she was freed of any obligations as guarantor of the lease of the Scarborough venue.
[9] Plaintiff's Affidavit [31] on page 8.
On 6 February 2018, Westpac notified the plaintiff's mother that it had opened a new loan account in her name as trustee for Blue Sky.[10] It is not clear when she applied for the loan.[11]
[10] Ms Debono's Affidavit, Annexure 5.
[11] Ms Debono's Affidavit, Annexure 4.
The plaintiff set out in his affidavit what he said was the extent of the interest he claimed as follows:
48.I will now state the extent of the interest I am claiming in the residential property 6 Taupo Glade Joondalup. WA Valuations was contracted by myself to complete a detailed valuation of the property at 6 Taupo Glade, Joondalup as of 2012 when the renovations on the property were completed. I will refer to this as the 'valuation report'. The valuation report states the property to be worth $450,000 prior to renovations being completed. As of 2012 when renovations were completed the property is valued at $650,000. This provides me with a 31% equitable interest.
49.Further to the renovations I contributed 2 amounts paid to the mortgage of 6 Taupe Glade, Joondalup of $46,000 in 2015 and $47,500 (part of larger amount of totalling $137,500) in 2013. Total of $93,500 [paid] off the mortgage. The final payment of $46,000 was made in March 2015 Annexure 22 is proof of this. Taking the subtotal to $293,500 (plus 31% of the $50,000 increase, equals $15,500), taking to total to $309,000 of a house valued at $700,000. This valuation is substantiated on page 7 bottom paragraph of the Valuation report. This would increase my equitable interest to 44.1%. In accordance with Bashford vs Bashford (2008) WASC 138 at 68, the extent of my claim in beneficial interest may lead to a conclusion that I am co‑owner of the property or I have an equitable charge. The size or extent of the caveator's claim is relevant to the balance of convenience Kingstone constructions Pty Ltd vs Crispel Pty Ltd (1991) 5 BPR 11987, 11991.
50.These facts in my affidavit give rise to a constructive trust in my favour in respect of my contributions by expenditure of improvements to the property and to the value of the property. The constructive trust is said to arise by operation of the general equitable principal which restores to a party contributions which I have made to a joint endeavour which fails when the contributions have been made in circumstances in which it was not intended for the other party to them. Muschinski vs Dodds (1985) 160 CLR 583, 620.
51.The facts give rise to an interest in land created by equity arising from an estoppel. My equitable estoppel arose with the encouragement by the first defendant that a promise would be performed that the house would be signed to myself if the ATO debt was repaid, she was removed as guarantor from the commercial lease, and reliance on that by myself, in circumstances where departure from the assumption by myself would be unconscionable: Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466, 472.

The caveat

What was the nature and extent of the interest (Issue 2)?

By s 137 of the Transfer of Land Act 1893 (WA), a caveat must be lodged in the 'approved form'. The approved form requires the caveator to specify the estate or interest claimed and the grounds upon which the claim is made.[12]
[12] See notes 5 and 6 of Form C1.
The caveat was lodged on 16 February 2023. It described the interest being claimed as 'beneficiary under a constructive trust in respect of the land'. It said that the claim was made by virtue of the matters set out in the attached statutory declaration.[13]
[13] Plaintiff's Affidavit, Annexure 2.
In the statutory declaration attached to the caveat, the plaintiff stated that:
1.he had spent over $250,000 on improvements in around 2009 ‑ 2011;[14]
2.he had made two mortgage payments in 2013 and 2015, totalling $93,500;[15]
3.he had an agreement with his father, no later than 2015, that 'one day either (a) the property would be sold by David and he would pay me the value of my improvements and contributions; or (b) the property would be transferred to me and I would pay David the amount of his equity in the property less the value of my improvements and contributions';[16]
4.he believed that, when the property was transferred to his mother in 2018, 'she was aware that I had made some or all of the contributions in respect of the property set out above and that I had the understanding with David about my interest in the property set out above'.[17]
[14] Plaintiff's Affidavit, page 40 (part of Annexure 2) at [5].
[15] Plaintiff's Affidavit, page 40 (part of Annexure 2) at [6].
[16] Plaintiff's Affidavit, page 40 (part of Annexure 2) at [7].
[17] Plaintiff's Affidavit, page 38 (part of Annexure 2) at [8].
I will refer to the interest claimed in the caveat as the 'Claimed Contribution Interest'.
The caveat was an absolute caveat.
In submissions sent to the court on 19 June 2023, the plaintiff relied on a different factual basis, being matters that allegedly occurred after he was discharged from his bankruptcy on 27 August 2022. In his submissions, the plaintiff claimed a constructive trust based on promissory estoppel, arising from an alleged representation made by his mother that the property would be transferred to him if he removed her and his father as guarantors from the Scarborough lease. He claimed that, in order to have them released as guarantors, he had to agree to a settlement whereby he lost a claim of $800,000 and had to pay $50,541.60 in settlement fees. I will refer to the interest claimed in his submissions as the 'Claimed Estoppel Interest'.

Plainly, the basis of the Claimed Estoppel Interest was not the basis of the Claimed Contribution Interest.

The Notice from the Registrar

On 20 April 2023, the plaintiff received a Notice from the Registrar of Titles pursuant to s 138B of the Transfer of Land Act. By virtue of the Notice, the caveat would lapse at midnight on Monday, 15 May 2023 if its operation was not extended.
On 9 May 2023, the plaintiff filed an originating summons. The summons did not actually specify the orders he sought, but it was sufficiently clear that he was seeking an order extending the operation of the caveat.
The plaintiff made an undertaking as to damages.
The Registrar of Titles was, appropriately, named as a defendant.
On 15 May 2023 and 26 May 2023, I made orders extending the operation of the caveat until further order, to preserve the position until the merits could be properly determined.

Extension of caveat: legal principles

In Bride v The Registrar of Titles,[18] Edelman J summarised the principles that apply to an application for an extension of a caveat. I will apply those principles.
[18] Bride v The Registrar of Titles [2015] WASC 11 [11] ‑ [16].
In assessing whether to grant the extension of a caveat under s 138C(2) of the Transfer of Land Act, the two broad issues are:
1.whether the caveator's claim in respect of the estate or interest in land 'has or may have substance'; and
2.whether the balance of convenience favours the retention of the caveat and the appropriate orders to be made.
The caveator bears the onus of demonstrating that there is a serious question to be tried as to whether a caveatable interest exists.[19] The claim must concern a proprietary interest in land.[20] In other words, the caveator bears the onus of showing that there is a serious question to be tried as to whether he or she has a proprietary interest in land.
[19] Bashford v Bashford [2008] WASC 138[47].
[20] Bride [14] and Bashford [42].
In assessing whether the onus has been discharged, the Court does not ordinarily evaluate the applicant's evidence, resolve conflicts of evidence on affidavit, or undertake a preliminary trial.[21]
[21] Bride and Zorostar Pty Ltd v Arian Investments Pty Ltd [2016] WASC 348 [31].
As was said by Pritchard J[22] in Bateson v Jones (citations omitted),[23]
[t]he existence of a serious question to be tried involves showing a sufficient likelihood of success to justify the preservation of the status quo in all of the circumstances. How strong the likelihood of success needs to be depends upon the nature of the rights asserted and the practical consequences likely to flow from the order sought. Consequently, whether there is a serious question to be tried, and the consideration of those factors going to the balance of convenience, are not wholly independent inquiries.
[22] As her Honour then was.
[23] Bateson v Jones [2013] WASC 8 [19].

Did the Claimed Contribution Interest arise prior to the plaintiff becoming bankrupt (Issue 3)?

The plaintiff became bankrupt on 24 June 2019, when a sequestration order was made against him.[24] If the Claimed Contribution Interest was established, it would have arisen no later than 2018.
[24] Affidavit of Dominque Pascal Hermann Engelter sworn on 12 May 2023 (Engelter Affidavit), Annexure DPHE‑1.
Accordingly, the Claimed Contribution Interest, if established, arose prior to the plaintiff becoming bankrupt.

If it did, did the plaintiff have that interest at the time of lodging the caveat (Issue 4)?

In relation to this issue, I acknowledge the helpful submissions filed by the first respondent.
The trustee of the plaintiff's estate was the Official Trustee in Bankruptcy. The plaintiff filed a Statement of Affairs on 26 August 2019. He was discharged from bankruptcy by law[25] on 27 August 2022.[26]
[25] See s 149 of the Bankruptcy Act 1966 (Cth).
[26] Engelter Affidavit, Annexure DPHE-1. This was three years and one day from the date upon which the plaintiff filed his Statement of Affairs (as provided for by s 149 of the Bankruptcy Act).
By s 58(1)(a) of the Bankruptcy Act 1966 (Cth), when the plaintiff became bankrupt on 24 June 2019, all of his property immediately vested in the Official Trustee.
The term 'property' is broadly defined in s 5 of the Bankruptcy Act to mean
real or personal property of every description, whether situate in Australia or elsewhere, and includes any estate, interest or profit, whether present or future, vested or contingent, arising out of or incident to any such real or personal property.
For the purposes of s 58, 'property' which vests in the trustee in bankruptcy includes choses in action and claims to enforce equitable rights.[27]
[27] Batterham v Nauer, in the matter of Peter James Batterham [2019] FCA 485 [175]. See also Cirillo v Citicorp Australia Ltd (2004) 236 LSJS 24; [2004] SASC 293 [77] ‑ [79], and [82].
It follows that the Claimed Contribution Interest would (if established) constitute 'property' for the purposes of the Bankruptcy Act. It would therefore have vested in the Official Trustee on 24 June 2019.

The effect of discharge from bankruptcy is simply to release the bankrupt from provable debts.[28] Discharge from bankruptcy does not, of itself, revest assets or rights in the former bankrupt.[29]
[28] Section 153 of the Bankruptcy Act.
[29] Cirillo [86].
The plaintiff did not contest the facts in relation to his bankruptcy. In particular, he did not suggest that the bankruptcy had been annulled.[30]
[30] And see ts 41 ‑ 42 and ts 46 ‑ 47.
Accordingly, any interest that the plaintiff had prior to being made bankrupt, he no longer has.[31]
[31] And see Cirillo [86] ‑ [90] and Webster v Ashcroft [2012] 1 WLR 1309; [2011] EWHC 3848 (Ch) [27] ‑ [28] and [31]. See also Conveyancing and property (2013) 87 ALJ 162, 162 ‑ 163.
The plaintiff appeared to seek to rely on s 153 of the Bankruptcy Act to overcome any difficulties with his application. In his submissions, the plaintiff quoted from s 153(5):[32]
Where a bankrupt has been discharged of a bankruptcy, all proceedings taken in or in respect of the bankruptcy shall be deemed to have been validly taken.
[32] Plaintiff's Submissions emailed to the court on Monday, 19 June 2023, page 1.
That section is irrelevant. The current proceedings are not 'taken in or in respect of the bankruptcy'.
For the above reasons, the plaintiff did not have the Claimed Contribution Interest at the time he lodged the caveat (and still does not have that interest).

Can and should the caveat be amended (Issue 5)?

The next question is whether the caveat can and should be amended to claim the Claimed Estoppel Interest.
In Zorostar Pty Ltd v Arian Investments Pty Ltd,[33] Beech J[34] said (citations omitted):
As a matter of form, a caveat must definitely or explicitly specify the estate or interest claimed. It must reveal to the registered proprietor the nature and extent of the claim.
A caveat must not go beyond the legitimate claim necessary to protect the caveator's rights.
If a caveat is defective in form it should not be extended, unless it is amended to remedy the defect.
On an application to extend a caveat there is a limited power to allow the terms of the caveat to be amended. Amendment may be permitted so as to enable the caveat to express better or more fully the interest which is claimed in it. However, amendment is not permitted so as to alter the interest which is claimed and thereby claim a different interest.
The court has power to amend a caveat that, when lodged, was an absolute caveat so that, instead of absolutely forbidding registration, it forbids registration of an instrument unless it is subject to the claim of the caveator.
[33] Zorostar Pty Ltd v Arian Investments Pty Ltd [2016] WASC 348 [26] ‑ [30].
[34] As his Honour then was.
In my view, amending the caveat so as to claim the Claimed Estoppel Interest would alter the interest which is currently claimed in the caveat and would claim a different interest.
Accordingly, I do not have the power to amend the caveat in that way.
If I had the power to amend the caveat so as to claim the Claimed Estoppel Interest, and if I decided to exercise that power and make that amendment, I would have also amended the caveat so that, instead of absolutely forbidding registration, it forbade registration of an instrument unless it was subject to the claim of the plaintiff.

Should the plaintiff have leave to file a new caveat (Issue 6)?

As the plaintiff is unrepresented, I considered whether I should give him leave to file a new caveat, under s 138D(1)(e) of the Transfer of Land Act.
In my view, given the history of these proceedings[35] and the materials before me, it would not be appropriate to give leave at this time.
[35] See ts 41 ‑ 42, 46 ‑ 47, 52 and the email from the court to the parties on 13 June 2023. See also ts 80.
In general terms, leave should be refused if, upon a subsequent application being made to remove the caveat, the Court would remove the caveat, or if, upon a subsequent application being made by the plaintiff to extend the operation of the new caveat, the Court would dismiss that application.
In Professional Services of Australia Pty Ltd v Mila Properties Pty Ltd, Le Miere J said:[36]
22In my opinion the Court should refuse leave to lodge a new caveat if upon a subsequent application being made to remove the caveat the Court would remove the caveat, or if upon a subsequent application being made by the plaintiff to extend the operation of the new caveat the Court would dismiss that application.
23The principles applied by the Court when considering applications to extend a caveat closely resemble the principles applied by the Court when considering the removal of a caveat.
24The Court takes the approach that the parties should be given full opportunity to determine their rights by action, particularly if facts are genuinely in dispute. Accordingly, the Court will not generally determine disputed facts upon an application to extend a caveat.
25Nevertheless, the caveator must place some material evidence before the Court.
26In recent cases involving applications to extend a caveat, the Court has held that the caveator must show a serious question to be tried or an arguable case for maintaining the caveat. Usually this means that the caveat must show a serious question to be tried, or an arguable case that as at the date of the application for extension the caveator has a caveatable interest. Section 138C(2) requires the Court to consider whether it is satisfied that the caveator's claim has or may have substance. By the second alternative, it seems to me that the Court considers whether the evidence satisfies it that there is an arguable case that at the final hearing of the relevant proceedings the caveator may succeed in convincing the Court that the claim made in the caveat is established. Where the caveator's claim is based on matters of fact, the Court will apply the same rules as it does in interlocutory injunction proceedings when considering whether there is an arguable case. In cases where the claim depends on questions of law, the Court will normally decide the question of law, but it may consider it appropriate not to do so where the question of law may depend on the factual matrix and facts have not yet been established, or where there is insufficient time to be able to properly consider the point of law which arises.
[36] Professional Services of Australia Pty Ltd v Mila Properties Pty Ltd [2004] WASC 30 [22] ‑ [26].
The first defendant says there is no evidence supporting the Claimed Estoppel Interest. She says (references omitted):[37]
1.text messages in July 2021 refer to the first defendant's release from a guarantee of the Scarborough lease as a pre‑condition to the plaintiff's requests regarding the Property to even be considered. The parties could not agree on this;
2.the payment the plaintiff claims (in the Plaintiff's Submissions) to have made to the landlord to settle the lease issue, was in fact a bank guarantee in favour of the landlord that had been provided by the tenant EWL Pty Ltd (not the plaintiff or Ms Debono);
3.email correspondence between the first defendant and Ms Debono in 2022 and annexed to the affidavit of Chloe Alyce Debono sworn 9 May 2023, was in the context of Magistrates Court proceedings by the first defendant to evict Ms Debono (and by extension the plaintiff) from the Property and relates to ongoing settlement discussions. The first defendant objects to the admissibility of these emails ('without prejudice correspondence').
[37] First Defendant's Responsive Submissions filed 21 June 2023 [14].
The first point appears to be correct. The plaintiff responds to his mother's demand of 13 July 2021 by saying '[n]ot going to happen'.[38] This text message was omitted from the body of the plaintiff's affidavit.[39] During today's hearing, the plaintiff said that he omitted it because he did not think it was relevant.[40] Given what the plaintiff did include in the body of his affidavit, this was unconvincing.
[38] Plaintiff's Affidavit, pages 154 ‑ 155.
[39] See Plaintiff's Affidavit, page 9.
[40] ts 58 ‑ 59.
The second point also appears to be correct. In his submissions, the plaintiff claimed that he and his partner had to pay the landlord a 'settlement fee' of $50,541.60 as part of the settlement. The Settlement Deed attached to the plaintiff's affidavit refers to a bank guarantee in that precise amount, issued by a bank in favour of the landlord to secure the obligations of the tenant. The tenant was EWL Pty Ltd, not the plaintiff or his partner.[41] During today's hearing, the plaintiff explained that, while he accepted that EWL Pty Ltd was a separate corporate entity, it was effectively as if he and his partner were paying the money because it was a business that was effectively his and his partner's.[42]
[41] See Plaintiff's Affidavit, pages 20, 22 ‑ 24.
[42] See ts 59 ‑ 60.
In relation to the third point, it does appear that the emails were directed to settlement discussions. However, during the hearing, the plaintiff clarified that the representations he relied upon for his Claimed Estoppel Interest were allegedly made by his mother during those discussions, in October and November 2022.[43] When asked to identify where such representations were to be found in the affidavits, the plaintiff ultimately said that the representations had been made during oral conversations, and were not contained in his affidavits.[44]
[43] ts 64.
[44] See ts 64 ‑ 67, in particular, ts 67.5, and ts 72.
It is unnecessary to consider this further, having regard to the evidence before me and the points raised by the first defendant, which I consider have merit.
To the extent that the plaintiff now seeks to rely on materials contained in an affidavit filed this morning, I have a number of concerns about whether or not the plaintiff should be permitted to rely on that affidavit, noting that the first defendant objects to it. First, there is the time at which it was filed, when orders had been made setting a deadline for those materials. Second, I have concerns about the regularity of the document in relation to the attestation clause and the fact that it purports to have been executed on a date in the future. However, it is unnecessary to consider that further because even if I was to have regard to that affidavit,[45] I would remain concerned about the materials upon which a decision would need to be made today.
[45] See s 16 of the Oaths, Affirmations and Statutory Declarations Act 2005 (WA).
Whether or not leave to file a new caveat should be granted is a discretionary decision. At this stage, the materials that I have are insufficient to satisfy me that leave should be granted at this time.
I pause to observe that it is apparent to me that the way in which the parties were dealing with each other during this period of time is regrettable. It appears to me that the first respondent does not, and perhaps would not, challenge that the plaintiff has put a great deal of money into this property. In my view, there is merit in the plaintiff's assertion that he has some right (whether or not that is a proprietary interest) to recover, at least, the money that he has spent. This does seem to me to be a matter that ought to be capable of settlement.
That said, what I have before me today is an application to extend a caveat that purported to protect an interest that the plaintiff did not have. It is, in those circumstances, entirely inappropriate to extend the caveat.
Further, I consider that I do not have the power to amend the caveat. In addition, I am not satisfied that I should, at this stage, exercise my discretion to give the plaintiff leave to file a further caveat. That is not to say that the plaintiff is prevented from instituting fresh proceedings seeking leave to file a further caveat.

Should the matter be adjourned (Issue 1)?

At 1.56 pm yesterday, my associate received an email from an officer of the Official Trustee. Its contents were surprising.
The author acknowledged that, on 9 June 2023, the Official Trustee was informed of the proceedings, and the fact that it had been listed for hearing today. The author continued:
In the bankruptcy form submitted by Mr Wright on 26 August 2019, Mr Wright did not disclose any interest in a house property, business or any other realisable asset, therefore, the Official Trustee does not have sufficient information at the current time to verify Mr Wright's claims. As the bankruptcy is now discharged, further investigation is required for the Official Trustee to make an informed decision on whether Mr Wright's claims vest in the bankrupt estate.
The Official Trustee investigations into the above claims are at their very early stages, and only commenced on 13 June 2023. As such, the Official Trustee would require a minimum of 8 weeks to conduct its investigations and reach a decision (provided that all parties cooperate with the trustee in providing the required information/documents). Mr Wright has also indicated to the Official Trustee his intention to annul his bankruptcy and if this occurs the Official Trustee would not have any interest in the property or the proceedings.
Considering the above, the Official Trustee requests that the hearing be adjourned for a minimum of 8 weeks and the Applicant, and the Respondent be invited to provide all the necessary information to the Official Trustee.
Please note that as the bankrupt estate does not currently have any funds, the Official Trustee does not intend to send a legal representative or attend the hearing scheduled for 22 June 2023. The Official Trustee respectfully requests that a copy the relevant court order be forwarded to the trustee.
I would summarise the position in this way:
1.The Official Trustee has been on notice of today's hearing since 9 June 2023.
2.The Official Trustee sought an adjournment the afternoon before the hearing.
3.The Official Trustee did so by sending an email to my associate.
4.The Official Trustee advised that no one would attend the hearing on its behalf.
It would be contrary to the principles of case management and the interests of justice to adjourn a hearing for eight weeks in these circumstances.
Nor would it be appropriate to extend a caveat which relates to a claimed interest which the caveator could not have.
However, to give the Official Trustee one further opportunity to protect any interest it may have, and in the absence of any claimed prejudice to the first defendant, I am willing to enjoin the first defendant from dealing with the property for a period of one week. If the Official Trustee wishes to take action, it will need to either lodge a caveat or institute fresh proceedings.

Orders

For those reasons, I would make the following orders.
The application to extend the caveat is dismissed.
Until 4.00 pm on 29 June 2023, the first defendant is restrained from creating, disposing of or dealing with any estate or interest in the property, unless the creation, disposal or dealing is expressly made subject to any proprietary estate or interest which the Official Trustee may have in the property.
The plaintiff is to pay the first defendant's costs to be taxed if not agreed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NL
Associate to the Judge
5 JULY 2023