FRIGGER -v- REID [2017] WASC 138 (23 May 2017)

4 Mrs Frigger applies for the an order amending the caveat by amending the estate or interest being claimed in the land by adding the words 'after the death of Evelyn Charlotte Reid', an extension of the caveat, alternatively orders restraining the first defendant from creating, disposing or dealing with any estate or interest in the land, an order that the administrators of the estate of Mrs Reid produce to the court a certified copy of the will and other orders.

5 Mrs Frigger has sworn an affidavit made on 9 May 2017 in support of the application. Mrs Frigger has deposed that in a will made in the early 2000s each of Mrs Reid's children was bequeathed one quarter of Mrs Reid's estate if Mrs Reid survived her husband. Mrs Reid later made another will which Mrs Frigger has not seen. Mrs Reid's husband died in 2007. Mrs Frigger has requested a copy Mrs Reid's latest will from Mr Reid and Ms ForsythReid but it has not been provided to her.

6 Mrs Frigger has annexed to her affidavit a home care statement from Silver Chain for the month of March 2017 which shows that $4,836.28 was disbursed by Silver Chain in that month. Mrs Frigger is unaware how $4,836.28 was disbursed by Silver Chain because Mrs Reid is no longer living at home.

7 On 9 May 2017 Mrs Frigger visited Mrs Reid's home in Hamersley and saw that the house has been cleared of all its contents. She is unaware of what has happened to those contents.

8 Mrs Frigger proposes to seek review of the guardianship and administration orders made by the State Administrative Tribunal.

9 The principles upon the application for an extension of a caveat were explained by Beech J in Bashford v Bashford [2008] WASC 138 [42] [49].

10 Section 137 of the Transfer of Land Act enables a person who claims 'any estate or interest' in land to lodge a caveat. A caveatable interest must be a proprietary interest in land: Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42, 50. A caveat is a form of statutory injunction preventing registration of a dealing against land until the caveator has been given a reasonable opportunity to justify the caveat by pursuing such remedies as the caveator may have: J & H Just (Holdings) Pty Ltd v Bank of New South Wales [1971] HCA 57; (1971) 125 CLR 546, 552, 558; Custom Credit (44 45); Brogue Tableau Pty Ltd v Binningup Nominees Pty Ltd [2007] WASCA 179; (2007) 35 WAR 27 [68]. The power of the court to make orders in favour of a caveator under s 137C of the Transfer of Land Act arises only if the court is satisfied that the caveator's claim 'has or may have substance'. The 'caveator's claim' refers to the claim by the caveator of the estate or interest that is claimed in the caveat: Professional Services of Australia Pty Ltd v Mila Properties Pty Ltd [2004] WASC 30 [17]. 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: Custom Credit (48); Jandric v Jandric [1999] WASC 22 [5]. In an application for an extension of caveat it is not appropriate to attempt to resolve conflicts of evidence on affidavit: Porter v McDonald [1984] WAR 271, 276. The caveat will not be removed unless the claim to an estate or interest in the land appears to be without foundation: Porter v McDonald (276); Custom Credit (48).

11 I will assume for the purposes of today that there is an arguable case that under her most recent will Mrs Reid has left one quarter of her estate to Mrs Frigger. As Mrs Reid is still alive such a provision would give Mrs Frigger no interest in her mother's estate. In Klewer v The Official Trustee in Bankruptcy [No 2] [2008] FCA 1788 Bennett J said at [50]:

A 'beneficiary under [a] will derives, while the testator remains alive, no legal or equitable right or title from the will: all the beneficiary has is the prospect of acquiring a right or title if the testator dies in the lifetime of the prospective beneficiary without revoking or altering the will' (Meagher, Heydon and Leeming, Meagher, Gummow and Lehane's Equity: Doctrines & Remedies (4th ed, LexisNexis Butterworths, 2002) at [6190]). As was stated In Re Parsons; Stockley v Parsons (1890) 45 Ch D 51, at 55, per Kay J (approved in Ogden Industries Pty Limited v Lucas [1968] UKPCHCA 1; (1968) 118 CLR 32, at 37):

It is indisputable law that no one can have any estate or interest, at law or in equity, contingent or other, in the property of a living person to which he hopes to succeed as heir at law or next of kin of such living person. During the life of such person no one can have more than a spes successionis, an expectation or hope of succeeding to his property.

12 The statement by Bennett J in Klewer v The Official Trustee in Bankruptcy [No 2] was approved of by the Full Court of the Federal Court in George v Fletcher (Trustee) [2010] FCAFC 53 [106].

13 Mrs Frigger relies upon the decision of McLure J in Lydon v Ryding [2002] WASC 308 where an injunction was granted prohibiting dealings with land where the testator was still alive. However that decision was not based on the content of a will but on a constructive trust. A constructive trust can arise by operation of the 'general equitable principle which restores to a party contributions which he or she has made to a joint endeavour which fails when the contributions have been made in circumstances in which it was not intended that the other party should enjoy them'. Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137, 148; Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583, 620 - see Bashford v Bashford [62].

14 Mrs Frigger has confirmed today that the interest she claims is under the will. In her affidavit of 9 May 2017 she deposes that she while she was named as a mortgagor because her parents did not qualify for a loan she did not make any payments under the mortgage. Mrs Frigger does not make a claim based on contributions under a joint endeavour. In my view Lydon v Ryding is distinguishable from this case.

15 Taking Mrs Frigger's case at its highest, she does not have an interest in her mother's land from her mother's will. Mrs Frigger's claim to an interest in the land is without foundation. I conclude that Mrs Frigger's claim to an interest in the land does not have substance. The caveat will not be extended.

16 I turn now to Mrs Frigger's alternative application for orders including orders restraining her mother from creating, disposing or dealing with any estate or interest in her land.

17 As Mitchell J said in Okewood Pty Ltd T/As Perth Glory v Football Federation Australia Ltd [2015] WASC 127, referring to Beech J's judgment in Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110, the principles governing the grant of an interim or interlocutory injunction are well known. The three primary interrelated considerations are whether there is a serious question to be tried or the plaintiff has made out a prima facie case, whether the plaintiff will suffer irreparable injury for which damages will not be adequate compensation unless an injunction is granted and whether the balance of convenience favours the granting of an injunction.

18 There is no serious question to be tried in this action. For reasons that I have already explained Mrs Frigger does not have any interest in any asset of Mrs Reid by reason of Mrs Reid's will. Further, the balance of convenience would not lie in the granting of an injunction. That is because the control of Mrs Reid's estate while she is alive is the subject of existing orders of the State Administrative Tribunal. The Tribunal is a specialist tribunal that has extensive powers under the Guardianship and Administration Act, including powers to review orders that it has made. If Mrs Frigger does have a legitimate concern associated with or arising out of the guardianship and administration orders that have been made the balance of convenience lies with Mrs Frigger making an application to the tribunal, as she proposes to do.