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[2016] WASC 406
General information, not legal advice.
Supreme Court of WA
2016-12-14
Smith J
Original judgment source is linked above.
(This judgment was delivered extemporaneously on 14 December and has been edited from the transcript).
1 The plaintiffs apply by originating summons pursuant to s 138C of the Transfer of Land 1893 (WA) (TLA) for an order extending a caveat over a property in Beechboro owned by the defendant. The plaintiffs, Lewis Briffa and Angela Briffa, are the son and daughter respectively of the defendant, Maria Briffa. As they share the same surname and in order to avoid confusion, I will refer to the parties by their first names. I mean no disrespect in doing so.
2 The application was supported by two affidavits, one filed by Lewis and one by Angela. They are selfrepresented and I have ascertained the nature of their application from the affidavit evidence, as the originating summons does not seek any specific relief. Both Angela and Lewis made helpful oral submissions before me. The plaintiffs did not provide an undertaking as to damages as required by Supreme Court Practice Direction 4.3.4, but informed me in court that they would be willing to do so if required.
3 The matter came before me today on an urgent ex parte basis, as (I am told) the caveat is due to lapse at midnight. I am told that Maria was informed of the hearing, although she did not appear. I am also told that the application was precipitated by a letter from Landgate issued at the request of Maria, and I infer that Maria opposes the extension of the caveat.
4 Frequently where applications to extend caveats are brought so close to the time of expiry, orders are made to extend the caveat until further order to provide for provision of evidence by the defendant and submissions. However, in some cases it is clear on the face of the caveat and evidence that there is no reasonable argument that there is a caveatable interest.
5 This is an example of the latter. In my view, it is clear on the face of the caveat that the plaintiffs do not have an arguable claim that they have a caveatable interest in the property and for the reasons set out below, I dismiss the application.
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.
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.
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. 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.
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.
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.
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 It is clear that Lewis and Angela are in dispute with their sister, Teresa Briffa. There are disputes about the disposition and ownership of furniture and other items apparently owned by Maria. There are also allegations made that Teresa has inappropriately accessed Maria's bank accounts. Angela's affidavit attaches an enduring power of attorney signed by Maria in favour of Angela, and also attaches a copy of a will signed by Maria which, on its face, purports to leave all personal and real property to her executors with the proceeds to be sold and distributed equally between Angela and Lewis.
8 Both the enduring power of attorney and the will are dated 20 November 2015.
9 Although, Angela and Lewis expressed some concern during the hearing about decisions being made by Maria and Teresa's apparent influence, there is no suggestion that Maria is unable to make decisions for herself. During the hearing, Angela and Lewis informed me that proceedings in the State Administrative Tribunal resulted in an outcome consistent with Maria having capacity to make decisions for herself. Angela in fact relies upon statements allegedly made by Maria to the effect that she wishes to go on a holiday, sell the property and distribute the proceeds between Angela and Lewis.
10 Relevantly, Angela alleges the following in her affidavit:[2]
(a) she and Lewis have an entitlement to the proceeds of the property pursuant to the terms of the will; and
(b) they have an entitlement to proceeds of the property because:
Maria Briffa made her intentions clear that she wished to return for a holiday to Malta if she was medically fit to travel after selling her house and disbursing the proceeds with only Lewis and myself equally thirds that as Maria Briffa agreed would be ample and return to a modest care facility with Mercy Care in Mandurah. Should Maria Briffa not be fit to travel abroad the contents of the house to be sold off and proceeds from the sale of the items would be split three ways between Lewis, Maria and myself. Maria Briffa had made arrangements to enter Mercy Care in Mandurah and leave the family home to be leased out and the funds split three ways between Lewis Briffa, Maria Briffa and myself.
11 The evidence of Lewis is consistent with and supports Angela's evidence.
12 Further, both Angela and Lewis claim that a caveat is required in order to protect alleged misappropriation of funds by Teresa.
13 Against this backdrop, it is important to bear in mind the caveatable interest claimed. The interest as claimed in the caveat is:
An estate or interest as persons who [are] to receive portion of the proceeds of land upon a sale.
14 Two statutory declarations were apparently lodged in support of the caveat.[3] The first refers to:
[V]ested interest in the property verbally agreed and acknowledged by all three parties involved ... Proceeds of sale, rental or other income derived from the said property to be divided as equal onethirds between all three parties if owner Mary Briffa is living. Should the property be sold, rented or other income derived when owner Maria Briffa is deceased the proceeds of such monies will be divided equally, half shares 50% to each remaining party being Lewis Briffa and Angela Carmel Briffa as evidenced in attached last will and testament of Maria Briffa.
[A]n estate and interest in the land ... as persons who are entitled to receive portion of the proceeds of land upon sale.
16 For two principal reasons, I do not consider that the plaintiffs have made out reasonable grounds that they have a caveatable interest in the property, even bearing in mind that this matter is being determined at an interlocutory level.
17 The first reason is that, viewed properly, all that is claimed is an interest in the proceeds of sale. Despite using the terminology of 'vested interest', there is no suggestion that the parties have an interest in the property itself. The 'agreement' with Maria referred to by Angela and Lewis speaks only of the distribution of proceeds. The plaintiffs might well be entitled in other proceedings to relief in relation to the distribution of proceeds but that is not a claim to an interest in the title to the property.[4] It is not a claim for a proprietary interest that is capable of being protected by a caveat.[5]
18 Second, a beneficiary of an estate does not have a caveatable interest in property. The fact that the plaintiffs are beneficiaries of Maria's prospective estate (under the terms of the will before me and assuming it to be current) does not give them a proprietary interest to any of the specific assets of the estate. Even on Maria's death, the plaintiffs would have no more than a right to have the estate duly administered and would not have a caveatable interest in the property merely by way of being beneficiaries.[6]
19 In the circumstances, I am not satisfied that the plaintiffs' claim has or may have substance within the meaning of s 137(2) of the TLA.
20 For completion, I note that the allegations as to Teresa's conduct are not, in my view, relevant to the issue of whether the plaintiffs have a caveatable interest in the property.
21 The property is listed for sale and apparently is 'subject to offer'. The conditions or date of any proposed settlement are unknown. The interests of neither Maria nor the prospective purchaser have been addressed by the parties but in assessing the balance of convenience, I take into account that there may be a pending sale. Further as to the balance of convenience, without suggesting whether or not any valid claim or potential ancillary relief can be sustained or granted, it is possible that the plaintiffs may have other means of protecting the proceeds of any sale should they seek to do so. I do not consider the evidence discloses a case of sufficient prospects to justify preserving the status quo by extending the caveat.
[1] Bride v The Registrar of Titles [2015] WASC 11 [11] - [16] (footnotes omitted).
[2] Affidavit of Angela Briffa filed 8 December 2016.
[3] Affidavit of Angela Briffa, Annexure B.
[4] Como v Helmers [2011] WASC 179 [83], [92].
[6] Meynert v Leafdale Pty Ltd [2005] WASC 102 [20].