BRIDE -v- THE REGISTRAR OF TITLES [2015] WASC 11 (8 January 2015)

3 Mr Bride submitted two brief affidavits in support of the urgent application. Despite a number of deficiencies in the application, including the absence of an undertaking as to damages, I made orders extending the caveat by 24 hours. I did this for two reasons:

(i) There was evidence concerning recent issues with Mr Bride's health, which made it difficult for him to bring the application earlier; and

(ii) Mr Bride is a litigant in person, and despite his admitted familiarity with court procedure arising from previous court hearings, he said that he did not know that an application to extend the caveat needed to be made to the Supreme Court until he was informed of this by an officer of Landgate on 6 January 2015.

4 Orders were also made that the registered proprietors, Mr Ashleigh Severin and Ms Tania Severin, be joined as second defendants. The application was relisted for hearing today at 4pm.

5 At the time that these orders were made, Mr Bride did not mention that he had been declared a vexatious litigant in relation to any proceedings concerning the Severins' property.[1] Although Mr Bride had applied for leave to join the Severins as parties to his application, he told me in court yesterday that he thought that the application only needed to respond to the Registrar of Titles. And at the hearing this afternoon, Mr Bride said that he had not turned his mind to whether he could bring proceedings against persons who were registered proprietors of the land (currently the Severins).

6 It is unfortunate that this point concerning the vexatious litigant order was not raised by Mr Bride. It is also unfortunate that the issue was not noticed when the application was filed with this Court. The failure to consider the issue meant that the Severins were required to make a conditional appearance today.

7 Ultimately, it is not necessary to determine whether Mr Bride needed leave to bring his application to extend the caveat over the land in relation to which he is a vexatious litigant. It is also unnecessary to determine whether the terms of the order declaring him vexatious in relation to proceedings involving this property even permit leave to be granted (counsel for the Severins argued that they do not). The reason why it is unnecessary to determine these issues is because I consider that it is clear the caveat should not be extended.

8 Broadly, there are two interdependent issues to consider in an application for an extension of a caveat under 138C of the Transfer of Land Act 1893 (WA).[2] They 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, if so, the appropriate orders to be made.

9 As I explain below in relation to (1), on the evidence before me, Mr Bride does not have a claim which has or may have substance. If he does, then the substance is weak.

10 In relation to (2), the balance of convenience does not favour the extension of the caveat. Apart from the weakness of Mr Bride's claim, he has offered no undertaking as to damages.

The legal principles applicable to the extension of caveats

11 Section 137 of the Transfer of Land Act 1893 (WA) enables a beneficiary or other person claiming an estate or interest in land to lodge a caveat. Section 138C(2) provides for the Supreme Court's powers when a caveator applies to the Supreme Court for an order extending the operation of a caveat, as follows:

(2) On the hearing of an application under subsection (1), the Supreme Court -

(a) if satisfied that the caveator's claim has or may have substance -

(i) may make an order extending the operation of the caveat for such period as is specified in the order; or

(ii) may make an order extending the operation of the caveat until the further order of the court; or

(iii) may make such other orders as it thinks fit concerning the caveat or the land in respect of which the caveat was lodged;

(b) if not satisfied that the caveator's claim has or may have substance, shall dismiss the application; and

(c) may make such ancillary orders in relation to the application as it thinks fit.

12 In assessing whether to grant the extension of the caveat 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.

13 The first issue is whether the caveator's claim in respect of the estate or interest in land 'has or may have substance'. This is sometimes expressed as whether the caveator can show that there is a serious question to be tried, or whether the caveator can prove a prima facie case.[3] In assessing whether the caveator has proved that the claim has, or may have substance, the Court does not ordinarily evaluate the applicant's evidence or undertake a preliminary trial.[4]

14 The requirement that the caveator's claim of substance be in respect of a claim of an 'estate or interest in land' has been held to mean that the claim must concern a proprietary interest in land.[5]

15 The second issue is the balance of convenience in extending the caveat. The court considers the balance of convenience when it decides whether to exercise its discretion to extend the caveat. The balance of convenience is not independent of the strength or weakness of the caveator's claim. Rather, the apparent strength or weakness of the case for relief at trial is a relevant consideration on the balance of convenience.[6]

16 An important factor in considering the balance of convenience is if the failure to extend a caveat will have the effect of destroying, or substantially impairing, the benefit of the proprietary interest which is claimed.[7]

Whether Mr Bride's claim has or may have substance

17 Mr Bride says that his claim in relation to the Severins' property is effectively that he is entitled to restitution of the title (and, presumably, rectification of the register). Mr Bride says that his claim arises from the foreclosure of the Property by the mortgagor, which he claims was unlawful.

18 The first difficulty with assessing whether Mr Bride's claim has or may have substance is that he has brought no claim against the Severins who are owners of the property. Nor has he even foreshadowed one. Even more fundamentally, as was pointed out by Mr Severin in an email to this Court, on 17 August 2004 Mr Bride was declared vexatious in relation to actions concerning the property which is the subject of this application.[8]

19 On 17 August 2004, E M Heenan J made a number of orders against Mr Bride relying upon s 4 of the Vexatious Proceedings Restriction Act 2002 (WA). E M Heenan J observed that since the financial collapse of their businesses in August 1984, the Brides had commenced over 60 actions or proceedings.[9] The orders, made against Mr Bride and his wife, included the following order

The Defendants and each of them be and are hereby prohibited from instituting any action, proceeding, appeal or other application in any Court in Western Australia against:

... all subsequent purchasers of...

... portion of Katanning Agricultural Area Lot 70 and being the whole of the land in certificate of title volume 1333 folio 281 (104 Acres)...

... in respect of any claim or matter arising from the enforcement by ABL of its securities registered over and charging in favour of ABL the Properties, under registered mortgage C337514 dated 26 March 1982, registered mortgage C646218 dated 27 June 1983, a Bill of Sale dated 24 August 1983, a Bill of Sale dated 24 March 1984, a deed of Guarantee and Indemnity dated 26 March 1982 or any other securities granted by the Defendants or any of them to ABL, prior to August 1984 (Securities), including, but not limited to, any claim in respect of the conduct of the receivers, managers or others in the enforcement of the Securities, the conduct and method of sale or realisation of the Properties and the title or other rights of the persons who acquired any of the Properties by purchase or subsequent transfer, which had ever been subject to the Securities.

20 Mr Bride accepted that the land described above is the Severins' property. Certificate of title volume 1333 folio 281 is the previous title to volume 1749 folio 52, which the subject of this application.[10]

21 Justice E M Heenan explained that the practical effect of these orders was that:[11]

the Brides will be prohibited from pursuing or instituting any legal proceedings arising from or associated with their disputes about the events associated with their defaults under the securities over their Katanning properties in 1984 and the actions taken by all those persons or corporations engaged in the enforcement of the securities or the resolution of the litigation and disputes which subsequently followed.

22 Not only does any underlying action by Mr Bride concern the relevant property but his claim also appears to arise from the same circumstances that were the basis for Mr and Mrs Bride's claims against various defendants since 1984, in relation to which they were declared vexatious. This includes a claim against Mr and Ms Fulford, who purchased the property at a sale conducted by the mortgagor.[12]

23 Even putting to one side the lack of any underlying claim, actual or foreshadowed, and the declaration of Mr Bride as a vexatious litigant, Mr Bride's affidavit does not reveal any claim of substance.

24 In his affidavit, Mr Bride says that the Severins' property was originally owned by his wife who 'transferred all of her rights' in relation to the property to Mr Bride. Mr Bride claims that there has been an ongoing legal conflict between the 'Fulfords and the Brides', relating to 'the unlawful manner in which the Mortgagor foreclosed'.[13] Mr Bride refers to a search he conducted showing that the certificate of title was in the name of GA and P Fulford. He claims that the Fulfords never had a 'Good Title' to the property.

25 The Fulfords, referred to in Mr Bride's affidavit, were the previous owners.[14]

26 Mr Bride also asserts in his affidavit that Mr and Ms Severin never had 'Good Title' to the property.[15] In his originating summons Mr Bride recognises the concept of indefeasibility of title but he does not address why any claim that he has against the Severins is an exception to the principle of indefeasibility of title under the Transfer of Land Act 1893 (WA) other than to suggest in his originating motion that they were aware that there was a registered caveat in existence and lodged by Mr Bride, and still on the title.

27 Mr Bride's allegation that the Severins were aware of his caveat could not be an allegation that they were aware of the caveat that Mr Bride now seeks to extend, since it was only lodged on 27 February 2012.[16] The Severins purchased the property on 6 October 2011.[17] However, it does appear from Mr Bride's affidavit that the historic certificate of title contains in the second schedule a reference to a caveat lodged on 23 October 1991.[18] It seems that this caveat has now been removed, although it is unclear whether it was still an existing caveat at the time of transfer to the Severins. Even if it were, the mere knowledge of the existence of a caveat, in the circumstances I have described, is not a sufficient basis to show that Mr Bride's claim against the Severins based upon some alleged right to restitution of the title is a claim that has or may have substance.

28 I am not satisfied that Mr Bride has a claim that has or may have substance.

29 I accept that Mr Bride's evidence about his health is a matter which militates in favour of the extension of a caveat, perhaps for a brief period. But weighed against this is the fact that even if Mr Bride has a claim that has or may have substance, on the material before me the best that could be said is that his claim is very weak. And apart from the weakness of any claim that Mr Bride has, there is a significant factor that points against the extension of the caveat. This is the lack of an undertaking as to damages.

30 During the hearing I raised twice with Mr Bride the absence of any undertaking as to damages. He did not proffer one.

31 Practice Direction 4.3.4 provides that an undertaking will usually be required to be given by a party obtaining the benefit of an order extending the operation of a caveat. The absence of any undertaking has been described as an 'important indication that the plaintiff's application should be refused on the balance of convenience'.[19] On the facts of a particular case, the absence of an undertaking can be 'a fundamental obstacle to relief',[20] although in an appropriate, although rare, case the Court might dispense with the need for such an undertaking.[21]

32 The importance of the undertaking, and its effect on the balance of convenience, must be assessed together with the other factors affecting the balance of convenience, including a preliminary assessment of the strengths and weaknesses of the plaintiff's case. But the undertaking as to damages serves an important function of protecting the rights of the parties in circumstances in which any assessment of the merits of a case will necessarily be provisional. As Commissioner McKerracher (as his Honour was then) said, the undertaking is a 'means of preventing injustice before the rights of parties have been finally determined'.[22]

33 In many cases, the substance of an undertaking which is given is not challenged. It is often apparent to the defendant whether a plaintiff has sufficient means to honour the undertaking if necessary. But in some cases it will be appropriate to require the plaintiff to demonstrate that his or her assets are sufficient to honour any undertaking. An undertaking which is of no economic substance places a defendant in a position little different from being without an undertaking at all.[23] A caveat can also be refused where the financial means of the plaintiff are unclear and the evidence filed by the plaintiff is insufficient to demonstrate financial capacity to meet any undertaking as to damages if necessary.[24] In this application, even if an undertaking had been offered these questions may have been raised.

34 Mr Bride's application to extend the caveat over the Severins property is refused.

35 After oral delivery of these reasons I heard from the parties in relation to costs. I delivered the oral reasons which follow.

36 There is no underlying action in this matter. Nor is there likely to be one. In the circumstances I have described, the appropriate order is that Mr Bride pay the costs of the Severins in relation to this application.

37 Counsel for the Severins sought an order that costs be fixed. She initially sought an amount of $3,000, said to have been incurred in preparation for this matter. Practice Direction 4.7.1 of the Supreme Court Practice Directions provides for costs in interlocutory matters.

38 Although this application may not strictly be an interlocutory proceeding, reasons provided in that practice direction favouring the fixing of costs also apply to this application.[25] I consider on a rough and ready assessment, that the application is of the mean and median nature akin to a typical argued application for an interlocutory injunction. The amount in Practice Direction 4.7.1, Item 2.9 of $1892 is appropriate (see also Items 1.4 to 1.6).

[1] See Western Australia, Government Gazette, No 10 (18 January 2005) 242-243.

[2] KWS Capital Pty Ltd v Love [2013] WASC 294 [32] - [36].

[3] Bateson v Jones [2013] WASC 8 [18] (Pritchard J); Hoon v Westpoint Management Ltd [2011] WASC 239 [44] (Corboy J); Jandric v Jandric [1999] WASC 22 [5] (Commissioner Buss QC); Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42, 48 (Owen J).

[4] Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618, 622 (Kitto, Taylor, Menzies, Owen JJ); Myra Pty Ltd v Thompson [2011] WASC 230 [12] (Le Miere J).

[5] Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42, 50 (Owen J); Bashford v Bashford [2008] WASC 138 [42] (Beech J); D & M Australia v Crouch Developments Pty Ltd [2008] WASC 160 [24] (Beech J).

[6] Bashford v Bashford [2008] WASC 138 [104] (Beech J); Castlemaine Tooheys Ltd v State of South Australia [1986] HCA 56; (1986) 161 CLR 148, 155 (Mason ACJ); Australian Broadcasting Corporations v O'Neill [2006] HCA 46; (2006) 227 CLR 57, 81 - 84 [65] - [71] (Gummow and Hayne JJ).

[7] Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42, 50 (Owen J); Bashford v Bashford [2008] WASC 138 [50] (Beech J); National Australia Bank v McCourt [2010] WASC 237 [39(a)] (Corboy J).

[8] Commonwealth Bank of Australia v Bride [2004] WASC 177.

[9] Commonwealth Bank of Australia v Bride [2004] WASC 177 [1].

[10] Affidavit of Mr Bride, sworn 7 January 2015, Attachment EJB4.

[11] Commonwealth Bank of Australia v Bride [2004] WASC 177 [143].

[12] Commonwealth Bank of Australia v Bride [2004] WASC 177 [14].

[13] Affidavit of Mr Bride, sworn 7 January 2015, [7].

[14] Affidavit of Ms McKenzie, sworn 8 January 2015, attachment JMM3.

[15] Affidavit of Mr Bride, sworn 7 January 2015, [8].

[16] Affidavit of Ms McKenzie, sworn 8 January 2015, attachment JMM4, page 11.

[17] Affidavit of Ms McKenzie, sworn 8 January 2015, attachment JMM3, page 10.

[18] Affidavit of Mr Bride, sworn 7 January 2015, attachment EJB5, page 10.

[19] McCourt v National Australia Bank Ltd [2010] WASC 121 [25] (Murphy J) citing Chia v Rennie (1997) 8 BPR 15, 601.

[20] Prater v Permanent Mortgages Pty Ltd [2010] WASC 278 [3] (Kenneth Martin J).

[21] Palazzo Homes Pty Ltd v Goh [2010] WASC 407 [31] (Le Miere J).

[22] Aaronisle Pty Ltd v Thorpe & Anor [2005] WASC 87 [68] (Commissioner McKerracher QC).

[23] Wildgum Nominees Pty Ltd v Land Alliance Pty Ltd [2009] WASC 244 [73] - [77] (Murphy J).

[24] Wildgum Nominees Pty Ltd v Land Alliance Pty Ltd [2009] WASC 244 [73] - [77] (Murphy J).

[25] Supreme Court Practice Direction 4.7.1 [9].