Yardley v Favell Gordon (Aust) Pty Ltd

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



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2005] WASC 212
Case No:CIV:1673/20059 AUGUST 2005
Coram:MASTER NEWNES23/09/05
21Judgment Part:1 of 1
Result: Leave to lodge second caveat
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…

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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.

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