YARDLEY -v- FAVELL GORDON (AUST) PTY LTD & ANOR [2005] WASC 212

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 212
Case No:	CIV:1673/2005	Heard:	9 AUGUST 2005
Coram:	MASTER NEWNES	Delivered:	23/09/05
No of pages:	21	Judgment Part:	1 of 1
Result:	Leave to lodge second caveat
Category:	B
PDF Version

Parties:	VALERIE PATRICIA YARDLEY FAVELL GORDON (AUST) PTY LTD THE REGISTRAR OF TITLES
Catchwords:	Real property Application to lodge second caveat Relevant principles Claim of constructive trust arising out of de facto relationship Property registered in name of company Whether plaintiff has caveatable interest Turns on own facts
Legislation:	Transfer of Land Act 1893 (WA) s 138B, s 138C, s 138D
Case References:	ANZ Executors & Trustee Company Ltd v Qintex Australia Ltd [1991] 2 Qd R 360 Baumgartner v Baumgartner (1987) 164 CLR 137 Commonwealth v Verwayen (1990) 170 CLR 394 Custom Credit Corporation Limited v Ravi Nominees Pty Ltd (1992) 8 WAR 42 Field v Gaborit [2002] QSC 466 Gilford Motor Co Ltd v Horne [1933] Ch 935 Giumelli v Giumelli (1999) 196 CLR 101 ICT Pty Ltd and Buquebus International Ltd v Sea Containers Ltd (1995) 39 NSWLR 640 Jones v Lipman [1962] 1 All ER 442 Landlush Pty Ltd v Rutherford [2002] QSC 219 Muschinski v Dodds (1985) 160 CLR 583 Professional Services of Australia Pty Ltd v Mila Properties Pty Ltd & Anor [2004] WASC 30 Yukong Line Ltd of Korea v Rendsburg Investments Corp of Liberia (No 2) [1998] 4 All ER 82 Beckford v Wade (1805) 17 Ves 87 Clark v Sinclair High Trading Limited, unreported; High Court of New Zealand, Auckland, M No 873/90; 23 July 1990 Ex parte Lisciandro v Official Trustee in Bankruptcy (1995) ATPR 41436 Gregg v Tasmanian Trustees Ltd (1997) 143 ALR 328 Howell v Union Bank of Australia (Ltd) (1888) 6 NZLR 567 Jandric v Jandric [1999] WASC 22 Kelly & Craig v Bentinck (1902) 22 NZLR 235 Lindsay Petroleum Co v Hurd, Farewell & Kemp (1874) LR 5 PC 221 Merbank Corporation Ltd (In liq) v Price (1978) 1 NZLCPR 24 Metcalf v Skyline Holdings Ltd (1982) 1 NZCPR 480 Sargent v ASL Developments Ltd; Turnbull v ASL Developments Ltd (1974) 131 CLR 634 Sullivan v Sullivan [2005] NSWSC 10 Troncone v Aliperti (1994) 6 BPR 13,291 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 Wilkin v Scardina [2003] WASC 144

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : YARDLEY -v- FAVELL GORDON (AUST) PTY LTD & ANOR [2005] WASC 212 CORAM : MASTER NEWNES HEARD : 9 AUGUST 2005 DELIVERED : 23 SEPTEMBER 2005 FILE NO/S : CIV 1673 of 2005 BETWEEN : VALERIE PATRICIA YARDLEY

Plaintiff

AND

FAVELL GORDON (AUST) PTY LTD

First Defendant

THE REGISTRAR OF TITLES

Second Defendant

Catchwords:

Real property - Application to lodge second caveat - Relevant principles - Claim of constructive trust arising out of de facto relationship - Property registered in name of company - Whether plaintiff has…

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.

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Details

Case: [2005] WASC 212
Decision Date

CaseChat Overview and Summary

Valerie Yardley, the plaintiff, sought leave to lodge a second caveat against a property owned by Favell Gordon (Aust) Pty Ltd, the first defendant, following the lapse of her first caveat. The first defendant was owned and operated by David Favell, the plaintiff's former de facto partner. The plaintiff argued that a constructive trust arose in respect of the property, charging it with the respective contributions of herself and Mr Favell to that property. The court had to determine whether there was a serious question to be tried regarding the plaintiff's claim and if the balance of convenience favoured granting leave to lodge a second caveat. The court found that there was a serious question to be tried regarding the plaintiff's claim, as it was arguable that the first defendant was the alter ego of Mr Favell, and he was effectively the sole beneficiary of the Hepburn Way property. The court also found that the balance of convenience favoured granting leave to lodge a second caveat, as the plaintiff had not unduly delayed in seeking to enforce her claimed right, and the first defendant had not demonstrated sufficient urgency in selling the property to outweigh the plaintiff's interest in having the matter determined. The court granted leave to the plaintiff to lodge a second caveat, subject to her providing an undertaking as to damages.

Orders