CULLETON -v- HARDING [2025] WASC 495 (25 November 2025)

(1) A caveator who is served with a notice under section 138B(1) may apply to the Supreme Court, in accordance with rules of the court, for an order extending the operation of the caveat.

(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.

(3) An interim order under this section may be made ex parte unless the court orders otherwise.

(4) The applicant shall ensure that the Registrar is served with a copy of each order made by the court on an application under subsection (1).

10 The principles applicable to an application to extend a caveat are well settled and were summarised in Bashford v Bashford,[3] and in Bride v Registrar of Titles.[4] I do not propose to restate these principles.

1. In essence, there are two questions for determination:

(a) first, has the caveator demonstrated that their claim has or may have substance or, as it is sometimes put, has the caveator established that there is a serious question to be tried in respect of the estate or interest in the land claimed?

(b) secondly, does the balance of convenience favour the extension of the operation of the caveat?

1. The two questions are interrelated. The court must balance the injustice that might be suffered by the proprietor if the caveat were to remain against the injustice that might be suffered by the caveator if the caveat is removed.
2. The 'caveator's claim' refers to the claim by the caveator of the estate or interest that is claimed in the caveat.[5]
3. On an application for an extension, the onus is on the caveator to demonstrate that there is a serious question to be tried as to whether a caveatable interest exists.[6]
4. The application proceeds on the basis of affidavit evidence. It is not appropriate to resolve conflicts of evidence on affidavit.[7] Any disputed questions of fact should be left for resolution in a fresh action commenced by writ of summons to substantiate the claimed interest.
5. A caveatable interest must exist at the time a caveat is lodged. It cannot be lodged to protect a future interest,[8] nor must it go beyond the legitimate claim necessary to protect the rights of the caveator.[9]
6. A caveat which is defective in form ought not to be extended, at least unless it is amended to remedy the defect.[10]
7. A claim in a caveat for 'an equitable interest' is defective in form. It fails to specify the nature and extent of the interest.[11]

1. The Caveat states that it has been lodged by Mr Culleton and his wife.
2. Under the part of the Caveat titled 'estate and interest being claimed' the Caveat states that the 'Caveator claims an equitable interest in the said land'.[12]
3. Under the part of the Caveat titled 'claim statement', the Caveat states the following:[13]

The registered proprietors acquired title to the land as a result of fraud, within the meaning of section 68(1)(g) of the Transfer of Land Act 1893 (WA); The transfer to the current proprietors is liable to be set aside in equity, the Caveator has commenced, or intends to commence, proceedings to recover their interest; The caveat is necessary to prevent further dealing until determined by Court.

1. At the hearing of Mr Culleton's application, I raised with him that the Caveat appeared to be defective in form as it merely claimed an equitable interest. He indicated that he wished to amend the terms of the caveat. He subsequently sought to amend the Caveat in the following terms:

The Caveator(s) claim an equitable interest in the land described in Certificate of Title Volume 1795 Folio 578 (Lot 350 Albany Hwy/McKenzie Road, Williams) as the former registered proprietor (jointly with Ioanna Culleton under registered dealing M738087 until 13 October 2014) whose registered title was removed by fraud within the meaning of s 68 of the Transfer of Land Act 1893 (WA). The fraud consisted of the lodgement on or about 28 August 2014 of a statutory declaration by an officer of ANZ Banking Group Limited falsely representing to the Registrar of Titles that Transfer M738087 was executed pursuant to a valid power of sale under a mortgage, when no such power of sale existed and ANZ/Permanent Custodians Limited held only an unregistered monetary judgment. That fraud vitiates the current registration and gives rise to an equitable right in the caveator(s) to have the register rectified. The interest is endangered by the First and Second Defendant's actual and constructive notice of the fraud (including notices personally served on Graham Arthur Harding and the existence of Federal Court proceeding VID 391/2024) and by their attempts to further deal with or transfer the land removing the ability to exercise the caveator(s) rights in having the title corrected to be put back into the caveator(s) names in order return to the property.

Whether Mr Culleton's claim to an interest in the land has or may have substance

1. Mr Culleton and his wife are former registered proprietors of the Property.[14]
2. On 28 May 2014, Permanent Custodians Limited obtained default judgment in proceedings in this court against various defendants, including Mr Culleton and his wife.[15]
3. Mr Culleton claims that the judgment was irregular because it misdescribed the plaintiff by omitting the ACN for Permanent Custodians Limited. He also says that a property seizure and delivery order was issued rather than a seizure and sale order under s 3, s 80 and s 81 of the Civil Judgments Enforcement Act 2004 (WA).[16]
4. Mr Culleton also claims that 'fresh evidence' has come to light that no valid assignment of the mortgage was registered from Landmark Trust, which was purchased by ANZ Bank on the 8 December 2009 without notice. He claims that this meant that at the point of transfer he remained a Landmark customer. He alleges that an ANZ Bank manager lodged a false statutory declaration with the Registrar of Titles on the 14 August 2014, misrepresenting the transfer as pursuant to a power of sale under the Transfer of Land Act, when Permanent Custodians Limited acted solely as a judgment creditor without such authority. He contends that this vitiated the titles and enabled an unlawful 'fire-sale' disposition of the Property at a gross undervalue.[17]
5. Mr Culleton claims that he put Mr Harding on notice of the 'fraud' prior to the sale and settlement by correspondence dated 6 June 2014 and beyond, which stated that the Property was not for sale, and could not lawfully be transferred due to misrepresentations.[18] He alleged that Mr Harding transferred the property to Boyagin Investments with full knowledge of the caveat and fraud claims.[19]
6. Mr Culleton contends that he has a caveatable interest under s 137(1) of the Transfer of Land Act in the form of an equitable interest as beneficial owner, preserved by the fraud exception to indefeasibility under s 68 of the Transfer of Land Act. He alleges that the 'originating fraud' (false statutory declaration and irregular orders) taints the 'entire chain of title', and that Mr Harding's actual notice imputes fraud to him, rendering his title defeasible.[20]
7. Mr Culleton contends that there is a serious question to be tried as to the validity of the dispositions and his entitlement to relief, including restraint of further dealings and setting aside the recent transfer, and he relied upon the decision of Permanent Custodians Ltd v Upjohn (2007) 33 WAR 425.[21]
8. Mr Culleton also asserts that he has an interest arising from the fraud exception to indefeasibility and a right to rectification of the register pursuant to s 68 and s 134 of the Transfer of Land Act 1893 (WA) and authorities, including Aliraja v Susan Dukes & Commissioner of Titles [2025] WASCA 103.[22]
9. I am not satisfied that Mr Culleton has demonstrated that there is a serious question to be tried as to whether a caveatable interest exists. This is for five reasons.
10. First, to the extent that Mr Culleton's argument that there is a serious question to be tried relies upon the decision of Permanent Custodians Ltd v Upjohn (2007) 33 WAR 425, there is no such case. It cannot be found at page 425 of volume 33 of the West Australian Reports and I have been unable to locate any case with that name.
11. Secondly, while the decision in Aliraja v Susan Dukes & Commissioner of Titles does exist, it seems to have little relevance to the claim that Mr Culleton makes.
12. Thirdly, the evidence that Mr Culleton relies upon to establish fraud does not appear to extend much further than a series of bald assertions he makes in his affidavit that are, to some extent, contradicted by the documents attached to his affidavit.
13. In paragraph 10 of his affidavit, Mr Culleton claims that Permanent Custodians Limited was never granted any mortgage interest over the Property. However, historical title search details attached to his affidavit record Permanent Custodians Limited as having registered a mortgage on 31 March 2009.[23]
14. In paragraph 12 of his affidavit, Mr Culleton claims that Permanent Custodians Limited admitted in a number of Parliamentary enquiries that it was not the 'legal mortgagee' in possession. Attachment 'RNC6' to the Culleton Affidavit is a copy of a question to such an enquiry which he claims establishes this. The relevant question and answer states the following:[24]

(II) Was PCL ever the true mortgagee of the borrower or only the lender of record?

PCL has interpreted the reference to 'true mortgagee' to mean the party that was the ultimate source of funding to the borrowers in the RURAL Program - in which case the answer is "no"'. PCL was the lender of record in relation to the loans under the RURAL Program, and was recorded on title as mortgagee (as explained in the Transaction Summary above). However, funding was provided by financiers to PCL as Trustee, in order for PCL to in turn fund the underlying borrowers.

1. It does not seem to me that this statement is an admission that Permanent Custodians Limited was not properly the mortgagee. As I read the statement, Permanent Custodians Limited is saying that it was the registered mortgagee.
2. Fourthly, to the extent that Mr Culleton relies on procedural irregularities such as the omission of an ACN (if that is a procedural irregularity), it is not apparent to me how such procedural irregularities could constitute fraud.
3. Fifthly, the fraud alleged by Mr Culleton (if it is fraud at all) is not fraud engaged in by either Mr Harding or Boyagin Investments.
4. Mr Culleton alleges that he put Mr Harding on notice of the 'fraud' prior to the sale and settlement by correspondence dated 6 June 2014 and beyond. However, the correspondence attached to the Culleton Affidavit does not mention the specific matters that Mr Culleton now says constituted fraud, namely that:

(a) the default judgment obtained was irregular because it misdescribed the plaintiff by omitting the ACN, and a property seizure and delivery order was issued rather than a seizure and sale order under s 3, s 80 and s 81 of the Civil Judgments Enforcement Act 2004 (WA);

(b) that no valid assignment of the mortgage was registered from Landmark Trust; and

(c) an ANZ Bank manager lodged a false statutory declaration with the Registrar of Titles on the 14 August 2014, misrepresenting the transfer as pursuant to a power of sale under the Transfer of Land Act, when Permanent Custodians Limited acted solely as a judgment creditor without such authority.

1. The correspondence relied upon by Mr Culleton is set out in full in Schedule 1 to these reasons.
2. The first document that Mr Culleton relies upon does use the word 'fraud' and asserts that the transfer of the property might be illegal. But it does not explain why, or raise the matters mentioned above.[25]
3. The second document does refer to the statutory declaration signed by the bank manager but claims that it was revoked.[26] This is a different claim to the claim being made now.
4. Notably, paragraph 4.b of the Statement of Claim states that Mr Culleton's claim that the mortgage was not validly assigned is based on 'fresh evidence'. It is therefore difficult to understand how Mr Culleton could have informed Mr Harding about that claim in 2014.
5. In Assests Co Ltd v Mere Roihi,[27] Lord Lindley said:

the fraud which must be proved in order to invalidate the title of a registered purchaser for value... must be brought home to the person whose registered title is impeached or to his agents. Fraud by persons from whom he claims does not affect him unless knowledge of it is brought home to him or his agents. The mere fact that he might have found out fraud if he had been more vigilant, and had made further inquiries which he omitted to make, does not of itself prove fraud on his part. But if it be shewn that his suspicions were aroused, and that he abstained from making inquiries for fear of learning the truth, the case is very different, and fraud may be properly ascribed to him. A person who presents for registration a document which is forged or has been fraudulently or improperly obtained is not guilty of fraud if he honestly believes it to be a genuine document which can be properly acted upon.

1. It is not apparent to me that the documents relied upon by Mr Culleton establish that Mr Harding knew of the fraud that Mr Culleton now alleges, or that he was suspicious and abstained from making enquiries.
2. Fifthly, the evidence relied upon by Mr Culleton fails to adequately explain the relationship between Mr Harding and Boyagin Investments which is the present registered proprietor of the Property.

1. Mr Culleton submits that the balance of convenience favours extension of the caveat because its removal would cause irreparable prejudice to him as it would involve the loss of the primary asset underpinning solvency claims in Federal Court proceedings VID 391/2024. Mr Culleton has not explained the nature of the proceedings in the Federal Court or provided any evidence to substantiate this claim.[28]
2. Mr Culleton claims that extending the Caveat would preserve the status quo with no substantial prejudice to Mr Harding and Boyagin Investments. There is no evidence before me about whether Mr Harding or Boyagin Investments would suffer no prejudice as Mr Culleton asserts.[29] Mr Culleton has also not proffered an undertaking as to damages.

1. In my view, the decisive consideration is that Mr Culleton has failed to demonstrate that there is a serious question to be tried as to whether a caveatable interest exists. For this reason, I will not order the extension of the Caveat. Given this, it is not necessary to consider whether Mr Culleton should be permitted to amend the Caveat in the terms he seeks.

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

[2] Leros Pty Ltd v Terara Pty Ltd [1992] HCA 22; (1992) 174 CLR 407, 419.

[3] Bashford v Bashford [2008] WASC 138 (Bashford) [42] - [50].

[4] Bride v The Registrar of Titles [2015] WASC 11 [12] - [16].

[5] Professional Services of Australia Pty Ltd v Mila Properties Pty Ltd [2004] WASC 30 [17]; Bashford [46].

[8] Gangemi v Gangemi [2009] WASC 195 [38] - [45].

[9] Midland Brick Company Pty Ltd v Welsh [2006] WASC 122 [342].

[10] Jandric v Jandric [1999] WASC 22 [48]; Lydon v Ryding [2002] WASC 308 [21]; Boni v Kingsoak Pty Ltd [2007] WASC 174 [71]; Bashford [55].

[11] Jandric [40]; Cruz v Osborne [1999] WASC 8 [9] - [10]; applying Kerabee Park Pty Ltd v Daley [1978] 2 NSWLR 222, 230 - 232; Bashford [56].

[12] Culleton Affidavit, attachment 'RNC1' page 7.

[13] Culleton Affidavit, attachment 'RNC1' page 7.

[15] Culleton Affidavit, attachment 'RNC4' pages 14 - 15.

[16] Statement of Claim, par 4.a. Culleton Affidavit, pars 9 - 14.

[17] Statement of Claim, par 4.b. Culleton Affidavit, pars 9 - 14.

[18] Statement of Claim, par 4.c. Culleton Affidavit par 16, attachment 'RNC13' page 35.

[19] Statement of Claim, par 4.d. Culleton Affidavit par 16.

[22] Culleton Affidavit, pars 6 and 15.

[23] Culleton Affidavit, attachment 'RNC3' page 11.

[24] Culleton Affidavit, attachment 'RNC6' page 21.

[25] Culleton Affidavit, attachment 'RNC5' pages 16 - 17.

[26] Culleton Affidavit, attachment 'RNC5' page 18.

[27] Assests Co Ltd v Mere Roihi [1905] UKLawRpAC 11; [1905] AC 176, 210.