Bashford v Bashford

Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42

Fleming v New South Wales (unreported, NSWSC, Young J, 10 November 1997)

Legoine v Hateley [1983] HCA 11; (1983) 152 CLR 406

Litopoulos v Indiana Holdings Pty Ltd [2021] WASCA 88

Q (a pseudonym) v E Co (a pseudonym) [2020] NSWCA 220

Reeves v Reeves [2024] NSWSC 134

Sidhu v Van Dyke [2014] HCA 19; (2014) 251 CLR 505

Sotirianakos v Commissioner of Highways [2018] SASC 16; (2018) 131 SASR 130

Thorner v Major [2009] UKHL 18; [2009] 1 WLR 776 (HL)

Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387

1. These reasons concern an application by the plaintiff dated 18 March 2024 for an order that the caveat lodged against a property in Armadale (Property) be extended pursuant to s 138C of the Transfer of Land Act 1893 (WA) (TLA).
2. After hearing the matter on an urgent basis on 21 March 2024, I granted an interim extension of the caveat.
3. I heard from the parties further on 29 April 2024.
4. For the reasons that follow, I dismiss the application and order that the interim extension of the caveat be discharged.

1. The plaintiff has resided at the Property since December 1992.
2. She is one of five children of the first defendant, Charles Edward Wilkins (plaintiff's father), the registered proprietor of the Property.
3. The plaintiff's father is currently 103 years old and lives in an aged care home.
4. The plaintiff's mother, and former joint tenant of the Property, died in September 2013.
5. Neither of the plaintiff's parents have ever lived at the Property.
6. According to the plaintiff, her parents purchased the Property in November 1992 and allowed the plaintiff to live there with her daughter, and later her partner, without paying rent.
7. The plaintiff says she has never paid rent.[1]
8. According to the plaintiff, in or about 2012 her mother told her that she could live at the Property until she (ie. the plaintiff) 'kicked the bucket'.[2]
9. The plaintiff also says that in or about October 2013, after her mother died, her father gave her a copy of her mother's will and 'said words to the effect that [she] can live in the Property for the rest of [her] life, until [she] died, without paying rent' (father's promise).[3]
10. At some other time, which the plaintiff cannot recall, her father also gave her a copy of his own will.
11. The wills of the plaintiff's parents were evidently executed in November 2012.
12. The wills contain 'mirror' provisions. Relevantly, the wills provide that:[4]

(a) each spouse devises the whole of their estate to their survivor; and

(b) if predeceased by the other spouse, the Property would be given upon trust to the plaintiff:

to live in ... until ... she dies ... or ... [the Property] ceases to be [the plaintiff's] principal place of residence for a period of (3) months ...whichever event shall first occur PROVIDED that [the plaintiff] pay all the rates, taxes and other outgoings in respect of the [Property] ....

1. According to the plaintiff, she 'relied' on her parents' promises, made in 2012 and 2013, that she could live at the Property until she died.[5]
2. The plaintiff also deposes, in effect, that in reliance on her father's promise she paid for 'half a new fence'; installed a new electricity box, new water systems, and plumbing; and had trees lopped, at the Property.[6]
3. Further, the plaintiff says she gave of her labour to keep the Property maintained, by gardening, making repairs such as replacing taps, and by painting. However, she has not kept all the receipts over the years.[7]
4. The plaintiff also deposes to having paid local government rates, insurance and water charges relating to the Property since about November 2002.[8]
5. On 1 August 2023, solicitors acting for representatives of the plaintiff's father wrote to the plaintiff.
6. The letter, among other things, stated that the plaintiff had resided at the Property for over 30 years, and that it was reasonably believed that selling the Property was in the best financial interests of the plaintiff's father because it would allow the capital to be invested and, potentially, entitle him to a pension.
7. The letter gave the plaintiff two options: to purchase the property at market value or, alternatively, to start paying rent (with arrangements then being made for the Property to be sold subject to the plaintiff's proposed leasehold interest).
8. The plaintiff was requested to advise within 28 days if she wished to take up either offer.
9. On 10 October 2023, the plaintiff's solicitors responded. They asserted that, on their instructions, the plaintiff had a 'life estate' in the Property granted to her by her father, and that she sought an undertaking that her father's representatives would not sell or take any action which undermined her proprietary interest in the Property.

1. On 30 January 2024, the plaintiff lodged a caveat against the Property.
2. According to the caveat, the estate and interest claimed are described as 'an estate or interest by virtue of a [l]ife [i]nterest'.
3. The statutory declaration which accompanied the caveat reads in the following terms:[9]
   1. I am the registered proprietor's daughter.
   2. Since December 1992 I have had exclusive possession of the [Property].
   3. I have never paid rent.
   4. Since November 2002 I have paid all outgoings for the Property, including local government rates, maintained, and improved the Property.
   5. On 18 September 2013, the then joined tenant, Nelly Mavis Wilkins, my mother died.
   6. On or about October 2013 the registered proprietor, by parole (sic), granted me a life interest in the Property to live in the Property until I died, without paying rent.
   7. On 22 October 2020 the registered proprietor lodged the survivorship application and is the sole registered proprietor of the Property.
   8. The registered proprietor gave me a copy of his will dated 8 November 2012. The will at clause 4 grants me a life residency.
   9. I am seeking to register a caveat to protect my life interest in the Property.
4. I make three observations relating to these documents.
5. First, there is no mention of what the plaintiff's mother allegedly said to the plaintiff in 2012 or of the mother's will. Only the father's promise and his will are referred to in the statutory declaration.
6. Secondly, the statutory declaration asserts that the life interest was granted 'by [parol]'; in other words orally. Nonetheless, the plaintiff, in her statutory declaration, also alludes to being granted a life residency by her father's will.
7. Thirdly, there is no suggestion, in either the caveat or statutory declaration, of an interest arising by way of estoppel.

Section 138B notice and application

1. On about 5 March 2024, the second defendant sent a notice to the plaintiff under s 138B of the TLA. The notice advised that the caveat would lapse at midnight on 26 March 2024 unless, before that time, the plaintiff obtained an order from this court pursuant to s 138B(2)(a) of that Act.
2. On 18 March 2024, the plaintiff filed an application, relevantly, for an order pursuant to s 138C of the TLA that the operation of the caveat be extended until further order.
3. The matter came on for urgent hearing before me on 21 March 2024.
4. After considering the materials and hearing from counsel, I extended the caveat until 4 pm on 30 April 2024.
5. I granted the extension after raising several preliminary concerns with counsel for the plaintiff about the evidence and the application more generally.
6. Among other things, I queried how a proprietary interest of the kind asserted could be created orally; a suggestion by the plaintiff that there had been 'part performance' of a contractual obligation; and an estoppel argument asserted by the plaintiff in written submissions which had not been alluded to in either the caveat or supporting statutory declaration.
7. I also indicated that the extension was granted on an interim basis only, to afford an opportunity to the plaintiff to supplement her evidence and submissions, and to bring any application to amend the caveat.
8. Following this extension, the plaintiff filed a brief supplementary affidavit. Subsequently, the first defendant, followed by the plaintiff, each filed further written submissions. No application was brought to amend the caveat itself.
9. At the hearing on 29 April 2024, oral submissions were again advanced, and counsel for the plaintiff sought a further opportunity for the plaintiff to file additional material relevant to a contention to the effect that her asserted interest in the property took the form of a 'lease for life'.[10]
10. The first defendant did not object to this request. For that reason (and only for that reason) I adjourned the matter again, until 10 am on 17 May 2024, and further extended the caveat until 4 pm on 20 May 2024.
11. I also made orders that the plaintiff file any further outline of submissions and affidavit evidence by 6 May 2024.
12. The plaintiff did not file any further affidavit or outline of submissions. Nor was any application made for an extension of time to do so.
13. Accordingly, the hearing on 17 May 2024 was vacated and the parties were advised that the Court would proceed to finalise its decision based on the submissions and evidence presently before it.

1. The legal principles applicable on an application under s 138C of the TLA were summarised by Beech J (as His Honour then was) in Bashford v Bashford.[11]
2. In short, to succeed in her application to extend the caveat, the plaintiff must demonstrate that her claim has or may have substance. In other words, she must show there is a prima facie case or a serious question to be tried as to the existence of a caveatable interest.
3. It is trite that a caveatable interest must be a proprietary interest in land.

Is this a claim that has or may have some substance?

1. Ignoring the precise formulation of the claimed '[e]state and interest' reflected in the caveat itself, the plaintiff essentially appeared to assert that she enjoyed an interest in land taking some form of life estate; alternatively, an interest in land created by an equity arising from estoppel.

1. A life interest in land may be a proprietary interest in the form of, relevantly, a life estate or a lease for life. The distinction which runs generally between the two is that a lease for life depends on a contract, but a life estate does not.[12]

1. In my view the evidence before the Court does not give rise to an arguable inference that a lease for life may have been created.
2. The plaintiff does not depose to any written contract with either of her parents. Her evidence concerning verbal communications with them is confined to two conversations; one with each parent. The plaintiff does not say that it was suggested to her, in either conversation, that her staying rent free was (or would be) conditional upon her paying some or more of the expenses associated with the Property.
3. In any event, the plaintiff's evidence is that she had started incurring expenses in relation to the Property in November 2002. This was some 10 years before her conversation with her mother, and nearly 11 years before her conversation with her father.[13]
4. In making these observations, I have not ignored the terms of the wills.
5. Both wills effectively contemplate that the plaintiff would, for the rest of her life, be permitted to live at the Property provided she paid all the rates, taxes and other outgoings in respect of it.
6. Crucially, however, neither will describes the 'here and now'. Rather, the wills (when read together) are subject to a contingency: the death of both of the plaintiff's parents. It follows that the proviso just mentioned would only be enlivened upon the death of the plaintiff's father.
7. At the hearing on 29 April 2024, the plaintiff sought to rely on a South Australian decision, Sotirianakos,[14] as being analogous to the facts of the present case.
8. However, Sotirianakos is distinguishable for at least one reason: in that case it was common ground that the relevant parties had, in fact, entered into a contract.
9. That is not the situation here.

1. In my view, the plaintiff has also not shown that she arguably enjoys a life estate created by a unilateral disposition.
2. The promise allegedly made to the plaintiff was oral.
3. Section 34(1)(a) of the Property Law Act 1969 (WA) (PLA) relevantly provides that no interest in land is capable of being created except by writing signed by the person creating the interest, or by will, or by operation of law, while s 35 relevantly provides that any interest in land created by parol and not put in writing and signed by the person creating it has the force and effect of 'an interest at will only'.
4. Neither is it arguably open to the plaintiff to rely on s 36(d) of the PLA. Part performance is predicated on there being mutual obligations; being the antithesis of a unilateral disposition.
5. Nor does anything in the plaintiff's father's will arguably give rise to a unilateral disposition. The plaintiff's father is still alive. It follows that the plaintiff enjoys no more than a spes successionis; an expectation or hope of succeeding to the life interest contemplated by her father's will (subject to complying with the stated proviso).[15]
6. Indeed, I did not understand the plaintiff to suggest otherwise.[16]

1. A caveat which is defective in form ought not be extended, at least unless it is amended to remedy the defect.[17] Amendment is not permitted so as to alter the interest claimed and therefore claim a different interest.[18]
2. As I have indicated, neither the caveat itself nor the statutory declaration alludes to any claim of an interest arising by way of estoppel.
3. The caveat does not, in my view, capture such an interest.
4. Nonetheless, for completeness I will address what I understand to be the plaintiff's estoppel argument.
5. Three criteria must be present to give rise to what is conventionally categorised as proprietary estoppel:

(a) a representation made, or encouragement or assurance given, by the landowner, to the claimant;

(b) reliance by the claimant on the representation; and

(c) detriment incurred by the claimant as a consequence of the reliance.[19]

1. As to the first requirement, the representation, encouragement, or assurance must be clear and unequivocal.[20]
2. As to the second, the claimant bears the onus of showing that he or she acted on the representation, encouragement, or assurance.[21]
3. As to the third, for the question of relief to arise at all there must be detriment that is sufficiently substantial (or, to use equivalent expressions, real or material) to bind the conscience of the party said to be estopped.[22]
4. Once again, I note the plaintiff's evidence to the effect that she started incurring expenses relating to the Property in November 2002. This was many years before both of her parents' promises were allegedly made to her.
5. It follows that if there was any detrimental reliance, it could only have been in respect of expenditure incurred after the relevant promise was made.
6. However, the plaintiff does not, in terms, depose to precisely when she incurred specific line items of alleged expenditure let alone the circumstances under which each such cost was incurred.
7. The plaintiff deposes that she has 'not kept all the receipts over the years', and that those receipts she has kept are reflected at one of the annexures to her founding affidavit.[23]
8. Those documents may be summarised as follows:

(a) an invoice dating back to October 2002 from Stratco Home Improvement Stores. The invoice is addressed to the plaintiff's partner and shows various line items (mostly illegible) totalling what appears to be an amount of $1,532.30 with the handwritten words 'metal for carport roof' and '[p]aid chq no 201834';[24]

(b) an invoice dated 31 October 2002 from Priority One Electrical. This invoice is also addressed to the plaintiff's partner. It is in the sum of $360.80 with the description '[s]ummer [s]ervice on [a]ir conditioner' and '[r]eplaced EAG [p]ads [and] frames';[25]

(c) an invoice dated 31 August 2005 from Always Electrical. It is addressed to the plaintiff in the sum of $80.55 and appears to relate to the replacement of a 'thermal cut-out';[26]

(d) an invoice dated 19 December 2012 from Thermelec (and associated receipt) relating to 'PAD EA 8/9', 'EA 8/9 Wire Retainer', 'Belt A52' and 'Tornado Breezair Pump', totalling $440.63. The name and address of the customer are obscured;[27]

(e) an invoice dated 20 March 2019 from Gamato relating to '560 w 2Sp Motor Breezair', 'Motor Pulley Adj Large 110mm', 'Breezair Bearing Kit 800523' and 'A51 V Belt' totalling $808.00. No customer name or address is apparent;[28]

(f) an invoice dated 2 September 2021 from Hilton Plumbing & Electrical. It is addressed to the plaintiff's partner, appears to relate to the replacement of a Wilson 3 phase 'HWV with isolation' and 'upgrade switch board to house with RCD's' and totals $3,280. Accompanying the invoice is a bank confirmation showing the plaintiff's partner as 'payer', and an 'account activity' document showing payment details relating to what appears to be the same bank account (Business Account);[29]

(g) an invoice dated 18 February 2022 from Oakeshott Pty Ltd (and associated receipt) relating to various items including 'EA10/15 Breezair Filter Pad'. 'Float Valve Assy (Breezair)' and 'Reducing Joiner 13-10mm'. The invoice totals $401.00. The name and address of the customer are obscured;[30]

(h) an invoice dated 19 February 2022 from Oakeshott Pty Ltd (and associated receipt) relating to various items including 'E9 Breezair Filter Pad' and 'EA9 Wire Retainer'. The total is $36.00. The name and address of the customer are obscured;[31]

(i) an extract from what appears to be a bank statement with the handwritten words '2022' and 'lumberjacks tree lopping 2 jacarandas'. The extract shows what appears to be a payment to Lumberjacks WA relating to the Property in the amount of $1,643.21 on 18 September (no year is stated). No bank details, account holder or account number are apparent from the extract;[32]

(j) a statement from the Water Corporation relating to the Property spanning the period 22 January 2003 to 14 March 2024. The statement shows several payments having been made every year throughout that period. No account holder is apparent from the statement;[33]

(k) an RAC Insurance building and contents insurance policy document relating to the Property for the period of insurance 5 February 2018 to 5 February 2019. The document shows separate insured sums for both building and contents, and a monthly premium (presumably for both forms of cover) as $65.85.[34] The plaintiff, her partner, and her father are all listed as policy holders. The document is addressed to the plaintiff's partner, and a bank account in his name (alone) is identified as the account to which direct debits would automatically apply;[35]

(l) an extract from what appears to be a bank statement with the handwritten words 'first payment of home and contents'. It shows what appears to be a payment on 6 February 2018 to RAC Insurance of $65.85. No bank details, account holder or account number are apparent from the extract;[36]

(m) a bank statement for the Business Account showing what appears to be a series of bi-monthly payments (in different amounts) to RAC Insurance spanning the period 22 March 2021 to 5 March 2024. No account holder is apparent from the statement;[37] and

(n) a bank statement for the Business Account showing what appears to be a series of weekly payments of $38.00 each to the City of Armadale spanning the period 19 April 2022 to 8 March 2024. No account holder is apparent from the statement.[38]

1. As will be seen, the above evidence reveals that:

(a) the first four invoices (totalling $2,414.28) predated the father's promise in about October 2013;[39]

(b) of the next five invoices (totalling $6,168.21), dated between March 2019 and some date in 2022, at least one (totalling $3,280) was paid by the plaintiff's partner, with the name of the payer of the remaining $2,888.21 unclear on the evidence;[40] and

(c) ongoing RAC insurance premium payments (evidently including for contents insurance) and payment of rates to the City of Armadale appear to have been made by the plaintiff's partner, having been charged to the Business Account.[41]

1. It is not immediately apparent, on the evidence, whether any of the amounts paid by the plaintiff's partner were, nonetheless, either incurred by the plaintiff herself (whether wholly or in part) or amounts for which she was somehow liable.
2. Even assuming either was the case, at the end of the day it seems to me that amounts totalling little over $6,168.21 plus local government rates, insurance and water charges were incurred after the father's promise was allegedly made, in circumstances where the plaintiff has lived rent free at the Property for some two decades beforehand and for more than a decade afterwards.
3. As the first defendant correctly indicates, the plaintiff relies on what appear to be vague and inadequately quantified statements of expenditure on a relatively small number of items in purported reliance on the statements said to have been made by her parents in circumstances where the plaintiff appears to have enjoyed a countervailing benefit of living rent free at the Property for over 30 years.
4. In Sidhu v Van Dyke,[42] Gageler J (as His Honour then was) observed that to establish that the belief to which a party was induced by a representation was a contributing cause to the course of action or inaction taken, the party needs to establish more than that they had the belief and took the belief into account when acting or refraining from acting.
5. Rather, the party needs: [43]

to establish that having the belief and taking the belief into account made a difference to her taking the course of action or inaction: that she would not have so acted or refrained from acting if she did not have the belief. (emphasis added)

1. In this case, the plaintiff has adduced no evidence as to what, if anything, she would have done differently had she been told that her father's promise (or for that matter her mother's) was not intended to be binding.
2. For example, the plaintiff makes no claim that she cared for her parents in reliance on either of their alleged statements; or that she gave up a better alternative to living rent free at the Property.
3. As the first defendant accepts[44], it might be inferred from the plaintiff's evidence that, had it not been for either or both of her parents' promises, monies would not have been expended on half a new fence, an electricity meter box, new water systems, plumbing and air conditioning systems.
4. Perhaps trees might, also, not have been lopped.
5. However, whatever the precise amounts of those payments might have been, nothing in the plaintiff's evidence arguably suggests to me that the costs incurred could have come close to the likely value of the rent-free accommodation which the plaintiff has evidently enjoyed for more than three decades.
6. Nor, in my view, is there an evidentiary basis to support an arguable finding that would be unconscionable for the plaintiff's father to resile from what the plaintiff says she understood was promised.
7. In short, the plaintiff's evidence does not, in my view, rise to a level such that it might be said her claim of a proprietary interest either has or 'may have' substance.

1. The balance of convenience is a factor that must be considered where there is an application to extend a caveat. Nevertheless, interlocutory removal of a caveat is unusual where an arguable case as to the existence of a caveatable interest has been demonstrated.[45]
2. For the reasons I have outlined, I do not consider that an arguable case has been shown as to the existence of a caveatable interest.
3. It is accordingly unnecessary to consider whether the balance of convenience favours the plaintiff.

1. As Beech J observed in Bashford v Bashford,[46] the Court has power to impose an injunction maintaining the status quo between the parties even if it declines to extend a caveat.[47]
2. That said, the plaintiff has not articulated any other potential claim, not involving an asserted proprietary interest, such as might lead the Court to conclude there is some other serious question to be tried.

1. I am mindful of what the wishes of the plaintiff's parents appear to have been concerning the plaintiff and the Property, at least as at November 2012 when their wills were executed.
2. However, for the above reasons I am unable to conclude that the plaintiff has shown either an arguable proprietary interest in the Property or a basis for the grant of injunctive relief.
3. Accordingly, I dismiss the application and order that the interim extension of the caveat granted on 21 March 2024 (as subsequently further extended) be discharged.
4. I will hear the parties as to the question of costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CITATION : PITT -v- CHARLES EDWARD WILKINS by his guardian ad litem LARA KRISTINE CARROLL [2024] WASC 185 (S)

CHARLES EDWARD WILKINS by his guardian ad litem LARA KRISTINE CARROLL

Costs - Application for extension of caveat - Where application unsuccessful - Where no adequate reason identified to warrant a departure from the usual order as to costs

Supreme Court Act 1935 (WA) s 37

Application dismissed; plaintiff to pay first defendant's costs

Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72

Pitt v Wilkins [2024] WASC 185

Strzelecki Holdings Pty Ltd v Jorgensen [2019] 54 WAR 388; [2019] WASCA 96

1. On 17 May 2024 the Court handed down its reasons in Pitt v Wilkins [2024] WASC 185.
2. As appears from those reasons, the plaintiff's application to extend a caveat, pursuant to s 138C of the Transfer of Land Act 1893 (WA), was dismissed, and an interim extension was discharged.
3. Following the handing down of those reasons, the plaintiff and first defendant were requested to provide either an agreed minute or competing minutes with brief submissions regarding costs.
4. The plaintiff and first defendant were unable to agree costs. Accordingly, the parties, by their solicitors, filed competing minutes with submissions.
5. The first defendant relevantly seeks an order that the plaintiff pay his costs of and relating to the proceedings to be taxed if not agreed.
6. The plaintiff seeks an order that there be no order as to costs.
7. It is trite that the general rule, when the Court exercises its discretion under s 37 of the Supreme Court Act 1935 (WA) and O 66 r 1 of the Rules of the Supreme 1971 (WA), is that the successful party recovers its costs.
8. What constitutes 'success' in proceedings is to be determined by the reality of the circumstances involved in the case.[48]
9. Given the outcome of the application the first defendant has, on any view, been successful.
10. Nonetheless, the plaintiff resists the making of an order in the usual terms.
11. The precise basis upon which she does so is not entirely clear.
12. Among other things, the plaintiff in her submissions asserts that the application of Lara Kristine Carroll (Ms Carroll) to be appointed guardian ad litem 'was opposed and not determined by the Court'.
13. The plaintiff further submits that the first defendant's conditional appearance was 'not made unconditional by an order appointing Ms Carroll as guardian ad [litem] under O 70 r 3 or r 5 of the Rules...', and that Ms Carroll did not 'regularise her standing before the Court before reasons were delivered'.
14. For the reasons which follow, the above submissions rest on incorrect factual premises. They cannot be accepted.
15. On 21 March 2024, when the matter was first called, the question of Ms Carroll's application to be appointed as guardian ad litem was squarely raised. A discussion then ensued between the Court and counsel for the first defendant.[49]
16. Shortly after that discussion, I was informed by counsel for the plaintiff that she was unable to obtain instructions on the matter of a guardian to be appointed for the first defendant given the short notice of the application.[50]
17. However, upon inquiry by the Court, counsel for the plaintiff confirmed that her client neither consented to nor opposed Ms Carroll being appointed guardian ad litem for the purposes of, at least, that day's hearing.[51]
18. I then indicated that I would make an order at the outset appointing Ms Carroll as guardian ad litem for the purposes of the hearing on 21 March 2024.
19. Further, at the conclusion of that hearing, and after foreshadowing its adjournment, I indicated that the order appointing Ms Carroll as guardian ad litem, for the purposes of the hearing on that day, would be varied '... such that ... that appointment continues to operate until further order'.[52]
20. Counsel for the plaintiff did not demur.[53]
21. Orders were then formally issued on 21 March 2024.
22. Order 7 of the orders reads as follows:

Effective 21 March 2024, and until further order, Lara Kristine Carroll be appointed as guardian ad litem to the first defendant for the purposes of these proceedings only.

1. At no time following the making of these orders did the plaintiff challenge them.
2. In addition, according to the plaintiff, Ms Carroll is a 'non-party'; Ms Carrol did not adduce any evidence by way of affidavit; and the Court has power to part award costs to a 'non-party defendant (sic)' but would rarely do so.
3. With respect, these submissions are also misconceived.
4. Properly understood, Ms Carroll was not a 'non-party'. She was appointed as guardian ad litem to the first defendant for the purposes of the proceedings. That much is plain from the Court's order of 21 March 2024. It is also plain from the heading of the reasons handed down on 17 May 2024. It follows that Ms Carroll was authorised, by this Court, to assist the first defendant, in these proceedings, as his guardian ad litem.
5. The fact that Ms Carroll may not have filed affidavit evidence is also neither here nor there. At the end of the day, the first defendant, assisted by Ms Carrol and represented by counsel, incurred costs in defending the proceedings. It was reasonable for the first defendant to have done so. As noted, the first defendant was ultimately successful.
6. No adequate reason has been identified to warrant a departure from the general rule.
7. In the circumstances I make the following orders:
   1. The plaintiff pay the first defendant's costs of the plaintiff's application by originating summons dated 18 March 2024 in an amount to be taxed if not agreed.
   2. The application otherwise be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Affidavit of Sandra Kaye Pitt sworn 18 March 2024 (First Pitt affidavit) [15].

[2] Affidavit of Sandra Kaye Pitt sworn 22 March 2024 (Second Pitt affidavit) [3].

[4] First Pitt affidavit annexures 'SP5' page 41, 'SP6' page 46.

[6] Second Pitt affidavit [5] read with First Pitt affidavit [16].

[9] First Pitt affidavit annexure 'SP9', page 55.

[11] Bashford v Bashford [2008] WASC 138 [42] - [56], see also Casella v Parkridge Group Pty Ltd [2023] WASC 224 [20] (Solomon J).

[12] Borambil Pty Ltd v O'Carroll [1972] 2 NSWLR 302, 307 (Jacobs JA, Holmes & Moffitt JJA agreeing).

[13] There is no evidence before the Court touching on any conversation(s) that may have taken place between the plaintiff and her parents in 2002 relating to the plaintiff's occupancy of the Property.

[14] Sotirianakos v Commissioner of Highways [2018] SASC 16; (2018) 131 SASR 130.

[15] Litopoulos v Indiana Holdings Pty Ltd [2021] WASCA 88 [23] (Mitchell & Vaughan JJA), and the authorities there cited.

[17] Bashford v Bashford [2008] WASC 138 [55].

[18] Bashford v Bashford [2008] WASC 138 [51].

[19] Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387; Thorner v Major [2009] UKHL 18; [2009] 1 WLR 776 (HL), 781, 786; Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394.

[20] Legoine v Hateley [1983] HCA 11; (1983) 152 CLR 406, 437, 439 - 440.

[21] Sidhu v Van Dyke [2014] HCA 19; (2014) 251 CLR 505, 522 [55]; Fleming v New South Wales (unreported, NSWSC, Young J, 10 November 1997); Bailey v Bailey [2024] NSWSC 101 [45] - [47]; Reeves v Reeves [2024] NSWSC 134 [472].

[22] Q (a pseudonym) v E Co (a pseudonym) [2020] NSWCA 220 [127], [163] (Meagher JA, Leeming & Payne JJA agreeing).

[23] First Pitt affidavit [16] and annexure 'SP4' read with Second Pitt affidavit 22 March 2024 [5].

[24] First Pitt affidavit annexure 'SP4' page 36.

[25] First Pitt affidavit annexure 'SP4' page 31.

[26] First Pitt affidavit annexure 'SP4' page 30.

[27] First Pitt affidavit annexure 'SP4' page 32.

[28] First Pitt affidavit annexure 'SP4' page 35.

[29] First Pitt affidavit annexure 'SP4' page 37.

[30] First Pitt affidavit annexure 'SP4' page 33.

[31] First Pitt affidavit annexure 'SP4' page 34.

[32] First Pitt affidavit annexure 'SP4' page 29.

[33] First Pitt affidavit annexure 'SP4' pp 15 - 20.

[34] First Pitt affidavit annexure 'SP4' pp 25 - 27.

[35] First Pitt affidavit annexure 'SP4' page 26.

[36] First Pitt affidavit annexure 'SP4' page 28.

[37] First Pitt affidavit annexure 'SP4' pp 21 - 24.

[38] First Pitt affidavit annexure 'SP4' pp 11 - 14.

[42] Sidhu v Van Dyke [2014] HCA 19; (2014) 251 CLR 505, 531 [91].

[43] Sidhu v Van Dyke [2014] HCA 19; (2014) 251 CLR 505, 531 [91].

[45] Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42, 50; Bashford v Bashford [2008] WASC 138 [50].

[46] Bashford v Bashford [2008] WASC 138 [52].

[47] Lydon v Ryding [2002] WASC 308 [22]; Lee v Mavaddat [2007] WASC 18 [37]; Powell v In De Braekt [2006] WASC 264 [10].

[48] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72; Strzelecki Holdings Pty Ltd v Jorgensen [2019] 54 WAR 388; [2019] WASCA 96 [50].