Transfer of Land Act 1893 (WA), s 138

Donaldson v Harvey & Anor, unreported; SCt of WA (Parker J); Library No 970304; 17 June 1997

FAI General Insurance Co Ltd v Burns (1996) 9 ANZ Ins Cas 61­384

Fountain Selected Meat (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202; (1988) 81 ALR 397

Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134

Palmer v Mullins Investments Pty Ltd (In liquidation) v Registrar of Titles, unreported; SCt of WA (Murray J); Library No 920352; 26 June 1992

Re Malley SM; Ex parte Gardner [2001] WASCA 83

1 ROBERTS-SMITH J: By originating summons dated 21 May 2002, the plaintiff seeks an order that the defendant show cause why caveat I58106C lodged on 28 March 2002 against the land described as lot 82 on plan 238 being land in Certificate of Title vol 1690 folio 890 should not be removed. That seems to reflect a degree of confusion because what is obviously sought is not an order that the defendant show cause, but rather that he show cause why an order removing the caveat should not be made.

2 The application is made under s 138 of the Transfer of Land Act 1893 (WA) ("the Act"). By s 137 of the Act any beneficiary or other person claiming any estate or interest in land under the operation of the Act or inter alia by devolution in law or otherwise may lodge a caveat against the land. By s 138 of the Act a proprietor in respect of whose land a caveat is lodged may apply for an order calling upon the caveator to show cause why it should not be removed.

3 The originating summons is supported by an affidavit of Russell Mitchell Bomford sworn on 20 May 2002 and filed the following day. In that affidavit Mr Bomford deposes that he is the only child of the late Penelope Anne Bomford, late of 45 Dyson Street, South Perth, who died intestate on 21 June 2000 at Royal Perth Hospital. Letters of administration were granted by this court on 2 November 2000. A copy of the letters of administration are annexed to Mr Bomford's affidavit. According to Mr Bomford, at the time of his late mother's death she remained married to his father, Graham John Bomford, notwithstanding they had been separated since 1975. His father consented to the plaintiff being given a grant of letters of administration of his late mother's estate.

4 Mr Bomford further deposes that on 9 May 2001 he became the registered proprietor by transmission of his late mother's home at 45 Dyson Street, South Perth, which is the land now subject to the caveat. It is to be noted that the Certificate of Title shows the registered proprietor now to be the plaintiff "as executor of the will of Penelope Anne Bomford" but as to that Mr Bomford deposes that the Department of Land Administration has advised that notation is the result of an error and a correction is being made to show his true description as administrator of her estate.

5 On 22 April 2002 Mr Bomford entered into a contract to sell the caveated land to a purchaser. A copy of the contract is annexed to his affidavit. I am informed by Mrs Edward who appears on behalf of the plaintiff that there have been extensions of time for completion of the sale but the most recent and apparently final extension of the contract is to 23 December 2002 and there is accordingly from the plaintiff's point of view a serious degree of urgency for that reason about this application. The caveat and supporting statutory declaration are also annexed to Mr Bomford's affidavit.

6 The caveat is lodged in the name of Barry Brian John Barrett. The estate or interest being claimed is, "as beneficiary under the will." Then there is a line which is crossed out and the crossed-out words are, "by virtue of being de facto partner of 20 years." As I say, that is crossed out and the crossing out is initialled. The estate or interest is said to be claimed by virtue of, or as per, the facts set out in the caveator's statutory declaration. The statutory declaration, also dated 28 March 2002, states relevantly for present purposes:

"I was the partner of the said Penelope Anne Bomford for 20 years. I have a copy of her will which shows me as a beneficiary of the above property. I claim an interest in the above property as beneficiary under the will and as her partner of 20 years."

7 The plaintiff's solicitors wrote to the defendant by letter dated 10 May 2002. In that letter they pointed out that the plaintiff had obtained a grant of letters of administration and that grant and the transfer of the property into the plaintiff's name were both acts done in good faith in reliance upon there being no provable will having been executed by the deceased.

8 They go on to say that in the event it was Mr Barrett's intention to seek to prove the copy of the deceased's will which he alleges he is holding, it would be necessary to make an application to the Supreme Court for an order for the revocation of the grant. The solicitors make some observations about that and then also note that the defendant was claiming an interest on the basis that he was the deceased's partner for some time, and they assume that is a suggestion he would be making an application under the Inheritance (Family and Dependants Provision) Act 1972 (WA), but they do point out that such an application has to be made within 6 months of a grant of letters of administration being made, and even at that stage he was well out of time.

9 They further noted that the plaintiff does not accept that the defendant held a valid and provable will of his late mother and advised that unless he removed the caveat the plaintiff would be making an application for removal of it. They pointed out that the plaintiff had entered into a binding contract for the sale of the home with settlement scheduled at that stage to take place on 27 May 2002.

10 The defendant filed a memorandum of appearance on 7 June 2002 and on 14 June 2002 filed an affidavit sworn that day. That affidavit was found to be objectionable and on 27 August 2002 Acting Master Chapman ordered that it be struck out in its entirety. The learned Master gave the defendant leave to file a further affidavit on or before 9 September 2002.

11 On 9 September 2002 the defendant did file a further affidavit sworn that day. The plaintiff objects to all of the substantive paragraphs of that affidavit on the grounds essentially that the contents are irrelevant. The submission advanced is that the only evidence which is relevant to the proceedings is that which directly or indirectly proves the existence of a will of the deceased and a valid devise under that will which would enable the defendant to claim an interest in the property registered in the plaintiff's name.

12 The submission by Mrs Edward on behalf of the plaintiff further was that although an application for provision out of the estate of a deceased person may be made by a de facto widower of the deceased, who at the time of death was being wholly or partly maintained by the deceased, who was ordinarily a member of the household of the deceased, and for whom the deceased in the opinion of the court had some special responsibility to make provision, such application can only be made within 6 months from the date on which the administrator became entitled to administer the estate of the deceased.

13 That is a reference to s 7 of the Inheritance Act and specifically, I take it, a reference to subs (2)(a) which provides:

"No application for provision out of the estate of such a kind shall be heard by the court, unless the application is made within 6 months from the date on which the administrator becomes entitled to administer the estate of the deceased."

14 There is a proviso in subsection (2)(b) which is that:

"Such an application may be made if the court is satisfied that the justice of the case requires that the applicant be given leave to file out of time."

"A motion for leave to file out of time may be made at any time, notwithstanding that the 6 months period has expired."

15 The position, therefore, is presently that the defendant is out of time to make an application for provision under the Inheritance Act unless he is able to satisfy the court that the justice of the case requires that he be given leave to file out of time. That application is still open to him even now by virtue of subs (3). It must be appreciated of course, though, that the longer the period of time extends beyond the 6 months statutory period, the more difficult it would be to obtain leave to file out of time, and of course there would need to be very good, if not exceptional reasons, for that where the period is as long as it would be here.

16 I say no more about that because it is not something which I am required to determine and I express no view about it. I am simply taking the provision into account for present purposes as indicative of whether or not the defendant is necessarily entirely precluded by reason of the lapse of time from making an application at all.

17 The plaintiff's counsel further relies upon submissions made in support of the application to strike out the earlier affidavit of the defendant, reflected in the plaintiff's outline of submissions dated 12 June 2002. It is, I think, necessary for me at this stage to make a ruling on the objections to the affidavit of the defendant sworn 9 September 2002.

18 Paragraph 1 simply asserts that he was the de facto partner of the deceased for 20 years; that she died on 21 June 2000 and that she was the registered proprietor of the caveated property. Those are simply matters of fact and they are not in dispute.

19 Paragraph 2 purports to go to a claim of an equitable interest. In par 2 the defendant deposes:

"We pooled our monetary financial affairs and over the time I paid many of the costs and the ongoing running and maintenance costs of this property. I lodged the caveat I58106C to show support for an equitable financial interest in this property and relevant goods and chattels we accumulated."

20 That is not in fact the interest claimed in the caveat although it might possibly be the nature of an interest claimed in the statutory declaration. The latter document could, I think, be construed as advancing a claim of that kind although in very brief terms. For that reason I would not be disposed to uphold the objection and strike out the paragraph. The same applies, I think, to pars 4 to 6 inclusive of the affidavit.

21 By par 3 the defendant states that the plaintiff had been away at the time of his mother's death for 9 years and had no financial input in any way with the property, according to his knowledge, over 20 years. That cannot tend to prove whether or not the deceased left a will formally executed or otherwise, nor does it go to any equitable interest or claim the defendant himself might have. It is therefore irrelevant and that paragraph must be struck out. At par 7 the defendant deposes as follows:

"In the previous hearing, (27.8.02), on the matter I was very concerned to hear the Plaintiff's solicitor say 'the property was bequeathed to her client by his mother.' If this is true and I could be shown such evidence, I would withdraw the caveat forthwith. Unfortunately, Penny's Will is, I believe, missing and I am unaware of such a bequeath. Perhaps the Court can clarify this. Refer annexure E."

22 Annexure E is what the defendant says is a draft will of the deceased. It is, as I understand his submission, a copy of the will which he believes was executed by her; of course, not being the actual document. The relevant portion of the draft, which is unsigned and bears no date nor any other written endorsement, relevantly says:

"I GIVE:-

My home and all my worldly goods and any money from Bank accounts, Insurances and Superannuation Funds to Russell Mitchell Bomford my son to share and give to Barry half and gifts to my friends as he sees appropriate."

23 To return for the moment to par 7, the content of the paragraph is speculative, argumentative and entirely lacking in any probative value except to the extent the defendant says that he believes the deceased's will is missing. That would tend to go against any claim by him that any document he may have was intended by the deceased to actually be her testamentary disposition if that were the claim that was sought to be advanced. I would strike out all of that paragraph except the words "Penny's Will is, I believe, missing," and "refer annexure E."

24 Paragraph 8 is an apology to the Court for wasting the Court's time by the defendant's previous affidavit which was held to have contained irrelevant and otherwise objectionable material. Whilst I appreciate the sentiment, it is not probative of any relevant issue and that paragraph must be struck out.

25 I turn now to the principles to be applied. In Porter v McDonald v The Registrar of Titles [1984] WAR 271 the Full Court of the Supreme Court acknowledged those authorities which indicate that in the exercise of discretion on an application such as the present, the courts will have regard to matters that would be relevant to an application for an interim injunction but noted that the analogy cannot be taken too far.

26 Those matters may bear on the decision in a case in which the issue is whether or not the caveator has a protectable interest in the land but otherwise there is no room for an argument that on the balance of convenience the caveat should be removed. At 273 and 274 of Porter, Brinsden J pointed out that a large number of the authorities under s 138 of the Transfer of Land Act and comparative legislation had been discussed by him in Deputy Commissioner of Taxation v Corwest Management [1978] WAR 129, 139 to 141. His Honour went on to say:

"It is not necessary to refer to those authorities here except to say this: that they seem to establish a caveat should not be set aside pursuant to section 138 of the act unless the claim to the estate appears to be without any validity or that the interest, which in the first place justified the lodging of a caveat, no longer exists."

"Where the existence of the caveatable interest is not challenged and a caveat by its terms seeks to protect that interest, there is no room for an argument based on the balance of convenience that the caveat should be ordered to be removed."

"The practice with respect to the removal of caveats is one of long standing. The caveat will not be removed unless the claim to an estate or interest in the land appears to be without foundation. The courts will not, except in the most exceptional case, decide the matter on summons."

27 His Honour referred again to what Brinsden J had said in Corwest and then observed:

"Although it is true in more recent cases courts have indicated that in the exercise of discretion they will have regard to matters that would be relevant to an application for an interim injunction, in all such cases the issue seemed to his Honour to have been whether the plaintiff or the caveator had an enforceable or existing interest in land."

28 The principle was qualified and explained in Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42. His Honour the Chief Justice noted that the concept of a caveat as a form of statutory injunction was clearly stated by Barwick CJ with whom McTiernan and Owen JJ agreed in J and H Just (Holdings) Pty Ltd v Bank of New South Wales [1971] HCA 57; (1971) 125 CLR 546, 552 in the following passage:

"Its purpose is to act as an injunction to the Registrar-General to prevent registration of dealings with the land until notice has been given to the caveator. This enables the caveator to pursue such remedies as he may have against the person lodging the dealing for registration. The purpose of the caveat is not to give notice to the world or to persons who may consider dealing with the registered proprietor of the caveator's estate or interest though if noted on the certificate of title it may operate to give such notice."

"... The primary purpose of a caveat against dealings is not to give notice to the world of an interest. It is to warn the Registrar-General of a claim. The word caveat has long been used in law to describe a notice given to an official not to take some step without giving the caveator an opportunity to oppose it."

29 The Chief Justice observed that it is in the sense stated by Barwick CJ and Windeyer J that a caveat is a form of statutory injunction of an interlocutory character.

30 As to the onus of proof on an application of this kind Owen J, with whom the Chief Justice and Walsh J agreed, said at 48:

"... The onus lies on a caveator in proceedings under section 138 to demonstrate that there is a valid caveatable interest or, more correctly, that there is a serious question to be tried on the issue."

31 His Honour referred to Eng Mee Yong v Letchumanan [1980] AC 331 and the following passage of Lord Diplock in delivering the advice of the Privy Council:

"This is the nature of the onus that lies upon the caveator in an application by the caveatee under s 327 for the removal of a caveat: he must first satisfy the court that on the evidence presented to it his claim for an interest in the property does raise a serious question to be tried and having done so, he must go on to show that on the balance of convenience it would be better to maintain the status quo until the trial of the action, by preventing the caveatee from disposing of his land to some third party."

"This pronouncement is clearly correct insofar as it deals with the onus of demonstrating the existence of a caveatable interest. The reference to the balance of convenience requires further comment."

32 His Honour then went on to refer to Porter v McDonald and a number of other cases, following which he concluded (at 50) that the balance of convenience is a factor to be considered in an application under section 138 but that interlocutory removal of a caveat where an arguable interest as to the existence of the caveatable interest has been demonstrated would be unusual. His Honour observed that in his opinion it would be wrong to confine Rowland J's approach to situations where the caveatee concedes that a caveatable interest exists.

33 The foregoing authorities were followed and applied by Parker J with whom Pidgeon and Templeman JJ agreed in Halse v Embling, unreported; FCt SCt of WA; Library No 970734; 22 December 1997. Pertinently to the present case, at 11 his Honour quoted the following passage from the judgment of Brinsden J in Deputy Commissioner of Taxation v Corwest Management at 141:

"These authorities establish that the jurisdiction granted by s 138 should not be exercised so as to remove a caveat unless the case is one in which it is patently clear that the estate or interest sought to be protected cannot be made out and that degree of clarity will not emerge if there are disputed questions of fact, when the respondent should be left to proceed by way of action to establish the claimed interest or estate."

"This view reflects the sense of 'a serious question to be tried'."

"... It seems clear from the authorities that a caveator's claim must, in fact and law, be more than merely frivolous or vexatious and it must be made to appear from evidence led before the Judge on the s 138 application, that the plaintiff might ultimately succeed in establishing the interest on which the caveat purports to be founded."

34 The present case is one in which the sole issue is whether or not the defendant has a caveatable interest, that is, whether he has discharged the onus of demonstrating his claim is more than merely frivolous or vexatious and that on the evidence before me he might ultimately succeed in establishing the interest on which the caveat purports to be founded.

35 Here the defendant's interest is expressed, as I have noted, as being first as beneficiary under the will of the deceased and secondly as her partner of 20 years - the latter which I take to be a claim of an equitable interest.

36 It is not entirely clear quite how the defendant seeks to prove his claim insofar as it is said to be based on a will. I apprehend his position to be not that the document annexed to his affidavit is itself a testamentary disposition but that there is in existence, he believes, an executed will which he would expect to be in the same terms.

37 If the matter were put on the basis that the draft constitutes an informal document under Part X of the Wills Act 1970 (WA) then the onus would lie upon the defendant to have it admitted to probate as embodying the testamentary intentions of the deceased. But, as I say, that is not my understanding of his position. It seems to be accepted by him that the draft is not a document which could be shown to have been intended by the deceased to take effect as her testamentary instrument: see In the Estate of Hines v Hines [1999] WASC 111 and also In the Estate of Graham (1978) 20 SASR 198 at 205.

38 The highest I think the defendant puts it at present is that he believes there is a will in existence which would reflect the terms of the draft, but he advances no evidence of that other than his belief. On that point I note there is an affidavit of Margaret Ann Lavelle who the defendant says from the bar table participated with the deceased in the preparation of the draft will. Ms Lavelle's affidavit sworn 25 June 2002 indicates quite the contrary.

39 She deposes that she was the deceased's best friend from 1959 until her death in June 2000, their friendship starting when they were student nurses together. She deposes that she was very close to the deceased and describes herself as like a member of her family. Relevantly to the issue of the will, Ms Lavelle states that on several occasions over the years the deceased spoke to her about drawing up a will but never did anything at all about it, to her knowledge.

40 She suggests that if the deceased had drawn up a will, she would have appointed Ms Lavelle executrix and would have told her that she had done so but that never happened. She further states at par 10 that on the few occasions they did discuss a will for the deceased, she told Ms Lavelle that she wanted to make sure that the house at 45 Dyson Street, South Perth, and its contents went entirely to the plaintiff as it had been her parents' home and the defendant had made no contribution towards it at all. Ms Lavelle goes on to describe the circumstances in which the deceased was diagnosed with her fatal illness and very quickly declined and died only a week later.

41 Mrs Edward makes the further point on behalf of the plaintiff that even were the defendant able to adduce evidence of an executed will in the terms of the draft document, that in itself would not give rise to an estate or interest in the real property of the deceased as the defendant is not claiming that the real property itself was left to him, and furthermore that the evidence of the plaintiff shows that it was mortgaged and would have to be sold to discharge the liabilities of the estate.

42 As to that, it is difficult to understand exactly what is meant by the purported disposition in the draft will and I think there would be a real issue about that. Suffice to say, on the plain reading of it it would seem to be a gift or devise of all of the deceased's home and property to the plaintiff. It may be there is some trust created to give portion, that is to say, half to the defendant and to the deceased's friends, but for reasons advanced by Mrs Edward there would seem to be very real difficulties in the way of construing and giving effect to a disposition or purported disposition in those terms. At the very least, it seems to me, it does not indicate a devise of property or an interest in the property to the defendant.

43 I have already mentioned the aspect of a claim to a possible equitable interest under the Inheritance Act. The fact is that at the moment there is no such application and whether or not the defendant could now obtain leave to file an application out of time would be problematical in the extreme.

44 The plaintiff's submissions, I think, are succinctly summarised at par 13 of Mrs Edward's outline to the effect that the defendant has not put before the court any credible or cogent evidence:

(a) that the deceased executed a will prior to her death;

(b) that if she did execute any will prior to her death, such will named him as a beneficiary;

(c) that the deceased had any intention that the defendant would benefit from her estate in any way following her death;

(d) that the defendant has taken any steps to pursue any claim against the plaintiff as registered proprietor of the caveated property for an entitlement to that property;

(e) that there is any document in existence which could be admitted to probate pursuant to Part X of the Wills Act; and

(f) that he has applied for leave to file an application out of time for provision to be made under the Inheritance Act.

45 For those reasons the submission is that he has not adduced sufficient, or indeed any, evidence from which this Court could conclude there was a serious question to be tried.

46 I think the material advanced by the defendant might potentially be capable of affording a degree of support to the maintenance of a caveat in respect of an Inheritance Act claim were such a claim to have been made and were there to be a realistic prospect that leave to make such a claim out of time might be granted. There is certainly, in my view, no arguable case at all in support of a claim based on the existence of a will.

47 Having considered the material before me, I have come to the conclusion that the defendant has not discharged the onus of showing that on the evidence which is before me he might ultimately succeed in establishing the interest or, taking a view generous to him, either of the interests on which the caveat purports to be founded. The claim itself, furthermore, is not, as I apprehended, one for an interest in the land itself, but for some financial benefit out of the deceased's estate. There is, in my view, no serious question to be tried and the caveat, accordingly, cannot be sustained. It follows that the plaintiff's application must succeed.

48 I would also find for the plaintiff on the balance of convenience. In the circumstances of this case the plaintiff's statutory remedy under s 140 of the Act would not be likely to meet any loss he would suffer from a continuation of the caveat and loss of sale with any consequential costs or liability he might incur. Again, in that context, I would refer to the fact that the defendant's claim, as I understand it, is not for an interest in the land itself, but for some financial benefit out of the estate. There must be, on the basis of the foregoing, an order that the caveat be removed.