HUGHAN -v- HUNTERS BURSWOOD PTY LTD [2025] WASC 524 | Case summary

Supreme Court of WA|2025-12-10|Before: Palmer J

The application to amend the caveat and the application for an injunction

Mr Hughan does not accept that the Caveat is defective. He argues that there is no need for the Caveat to refer to the doctrines of part performance or equitable estoppel which he says are the legal doctrines which support the interests, rather than the interests themselves.[90]
Despite this, Mr Hughan proposed an amendment to the Caveat, although he argued that the amendment did not involve the substitution of a new estate or interest.[91]
In the part of the Caveat titled 'estate and interest being claimed', Mr Hughan proposed amending the Caveat in the following terms:[92]

He sought to amend the 'grounds of claim' as follows:

Lease for the following Lease Term with the following Parties and Date with an option to renew

A lease term commencing on 7.11.2016 and expiring on 30.6.2021 with an initial option to renew that has been exercised for a term of 5 years commencing 1.7.2021 and an option for 8 years commencing on 1.7.2026 pursuant to a specifically enforceable oral agreement between the parties made on around 23 November 2023 which had been partially performed alternatively pursuant to principles of equitable estoppel.

Mr Hughan argued that these amendments served to better describe the nature of the interest claimed.[93]
Burswood opposed Mr Hughan's application to amend the Caveat. It contended that there had been unexplained delay in amending the Caveat,[94] and disputed the proposition that the amendment did not set out a different estate or interest.[95] In relation to the latter point, reliance was placed on the decision of Musikanth J in Pitt v Wilkins.[96]

As Mr Hughan properly acknowledged, insofar as his interest concerns the 8 year option, his interest is equitable, not legal.
There is some authority for the proposition that the omission of the word 'equitable' might not result in the description of an interest being insufficient. In Kerabee Park Pty Ltd v Daley Kerabee Park Pty Ltd,[97] Holland J had to consider whether a description of a mortgage in a caveat that omitted the word 'equitable' was insufficient. His Honour said:[98]

... As to 2 (b), both caveats claimed an estate or interest 'as mortgagee'. That would seem to me to be a sufficient statement of the capacity in which the caveator was claiming an interest, and the nature of the interest claimed, without adding the word 'equitable', or using the word 'chargee'. Even if the use of those words might have made the description more complete or more accurate, they would not, I think, carry any meaning significantly or relevantly different from the word 'mortgagee'.

If such an approach were to be adopted in this case, it might be thought either that the description given in the Caveat was sufficient even though it omitted the word 'equitable', or that the amendment should be permitted as it would merely more completely and accurately describe the interest.
In Pitt v Wilkins,[99] the estate and interest claimed were an estate by virtue of a life interest which was said to have been given orally and under a will.[100] Musikanth J considered that as the caveat and supporting declaration did not allude to a claim arising by estoppel, the caveat did not capture an interest arising by estoppel.[101]
I am not inclined to order that the Caveat be amended in the terms sought by Mr Hughan. This is for two reasons.
First, in the present case, it seems to me that the interest that Mr Hughan seeks to advance is a different interest to that articulated in the Caveat. The Caveat in its terms claims that the Lease included an 8 year option. The Lease does not provide for such an option. Mr Hughan's claim for the 8 year option is equitable and does not arise under the Lease.
As the interest that Mr Hughan claims is a different interest to that claimed in the Caveat, the amendment that he seeks is beyond the court's power to amend because it would result in the substitution of a different interest.
Secondly, I have not concluded that the equitable interest that Mr Hughan claims in relation to the 8 year option has or may have substance. It would therefore be inappropriate to order the amendment sought, even if I did have the power to do so.
It is not in dispute, however, that the Unit is presently the subject of the Lease and will continue to be until 30 June 2026. Given this, insofar as the Caveat claims the interest under the Lease, it is unobjectionable and Mr Hughan is entitled to have that interest protected. I will therefore make an order that the Caveat may remain, provided that it is amended in the following terms:

Lease for the following Lease Term with the following Parties and Date with an option to renew

A lease term commencing on 7.11.2016 and expiring on 30.6.2021 with an initial option that has been exercised for a term of 5 years commencing 1.7.2021 and an option for 8 years commencing on 1.7.2026

In the alternative to Mr Hughan's application to extend his Caveat, he sought injunctive relief.[102] The application for the injunction relies on the same material that Mr Hughan relied upon to argue that the Caveat should be extended. That material does not support the grant of an injunction for the same reasons that it did not justify the extension of the Caveat.

For these reasons, I will order that the Caveat may be extended provided that it is amended in the terms that I have indicated.
I will hear from the parties regarding the appropriate orders to give effect to these reasons and on the question of costs.

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

[1] See Statute of Frauds (1677) (Imp) s 4 and Property Law Act 1969 (WA) s 34(1)(a).

[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].

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

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

[8] Palazza Homes Pty Ltd v Goh [2010] WASC 407 [9] - [11].

[9] Bashford [52], Lydon v Ryding [2002] WASC 308 [22]; Lee v Mavaddat [2007] WASC 18 [37]; Powell v In De Braekt [2006] WASC 264 [10].

[10] Affidavit of Robert Craig Hunter Sworn 20 October 2025 (Hunter Affidavit).

[11] Affidavit of John Gerard Hughan sworn 28 August 2025 (Hughan Affidavit), par 5.

[13] Hughan Affidavit, par 4 and attachment 'JGH2' pages 9 - 34. Hunter Affidavit, par 17.

[14] See cl 6 and item 5 of the schedule, Hughan Affidavit, attachment 'JGH2' pages 12 and 17. Hunter Affidavit, par 19.

[15] Hughan Affidavit, attachment 'JGH2' pages 13 and 18. Hunter Affidavit, par 20.

[16] Hughan Affidavit, par 8 and attachment 'JGH3' page 35.

[17] Hughan Affidavit, par 9 and attachment 'JGH4' page 36.

[26] Hughan Affidavit, par 10.a - 10.h.

[30] Hughan Affidavit, par 15 and attachment 'JGH5', page 37.

[31] Hughan Affidavit, par 15 and attachment 'JGH5', page 37.

[33] Hughan Affidavit, par 16 and attachment 'JGH6', page 41.

[35] Hughan Affidavit, par 17 and attachment 'JGH7', pages 42 - 43.

[36] Hughan Affidavit, par 19.a and attachments 'JGH8' and 'JGH9', pages 44 - 45.

[37] Hughan Affidavit, par 19.b and attachment 'JGH9', pages 45 - 75.

[40] Hughan Affidavit, par 25 attachment 'JGH11', page 79.

[41] Hughan Affidavit, par 26 attachment 'JGH12', page 80.

[43] Hughan Affidavit, par 33, attachment 'JGH13', pages 85 - 86.

[44] Hughan Affidavit, par 33, attachment 'JGH13', pages 85 - 87.

[48] Hughan Affidavit, par 34 and attachment 'JGH14', page 88.

[54] Plaintiff's Submissions in Support of Originating Summons for Extension of Caveat dated 28 August 2025 (Plaintiff's Submissions), pars 10 - 18.

[55] Plaintiff's Submissions, pars 10 - 17.

[56] Maddison v Alderson (1883) 8 App Cas 467, 475.

[58] Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387 (Waltons Stores).

[59] Plaintiff's Submissions, par 19 - 26.

[60] Plaintiff's Submissions, par 14. First Defendant's Amended Outline of Written Submissions in Opposition to the Plaintiff's Application to Extend Operation of Caveat dated 3 November 2025 (First Defendant's Submissions), par 26.

[62] Porter v McDonald [1984] WAR 271 at 276.

[63] Eng Mee Yong v Letchumanan s/o Velayutham [1979] UKPC 13; [1980] AC 331, 341.

[64] ts 36. First Defendant's Submissions, par 60.

[65] First Defendant's Submissions, par 60.

[68] First Defendant's Submissions, par 60.

[72] Hughan Affidavit, par 15 and attachment 'JGH5', page 37.

[74] Lighting by Design (Aust) Pty Ltd v Cannington Nominees Pty Ltd [2008] WASCA 23.

[75] N&J Efkarpidis Holdings Pty Ltd v Tancred Brothers Pty Ltd [986] ACTSC 58.

[77] Plaintiff's Submissions, pars 19 - 26.

[80] Plaintiff's Submissions, pars 22 - 23.

[81] See Affidavit of Robert Craig Hunter sworn 28 November 2025, par 6.

[82] First Defendant's Submissions, pars 35 - 48.

[83] First Defendant's Submissions, par 40.

[84] First Defendant's Submissions, pars 41 - 48.

[85] Sixth edition, Oxford University Press, 2007, page 2451.

[88] First Defendant's Submissions, pars 26 - 28.

[89] First Defendant's Submissions, par 33.

[90] Plaintiff's Outline of Submissions in Support of Application for Extension of Caveat dated 17 November 2025 (Plaintiff's Supplementary Submissions), par 10.

[91] Plaintiff's Supplementary Submissions, par 11.

[93] Plaintiff's Supplementary Submissions, par 16.

[94] First Defendant's Submissions in Reply to Plaintiff's Outline of Submissions in Support of Application for Extension of Caveat dated 17 November 2025 (First Defendant's Reply Submissions), pars 2 - 12.

[95] First Defendant's Reply Submissions, pars 13 - 19.

[96] Pitt v Wilkins [2024] WASC 185.

[97] Kerabee Park Pty Ltd v Daley Kerabee Park Pty Ltd [1978] 2 NSWLR 222 (Kerabee Park).

[99] Pitt v Wilkins [2024] WASC 185 (Pitt v Wilkins).

[100] Pitt v Wilkins, [28] - [29].

[101] Pitt v Wilkins, [66] - [68].

[102] Plaintiff's Supplementary Submissions, pars 49-64.

(1) the act relied on must be unequivocally and in its own nature referrable to 'some such agreement as that alleged'. That is, it must be such as could be done with no other view than to perform such an agreement ...

(2) by 'some such agreement as that alleged' is meant some contract of the general nature of that alleged ...

(3) the proved circumstances in which the 'act' was done must be considered in order to judge whether it refers unequivocally to such an agreement as is alleged.

The acts relied on must be referrable to an agreement 'within the general class to which the agreement alleged belongs' (Francis v Francis [1951] VicLawRp 48; [1952] VLR 321 at 340 Smith J), or must be referrable 'to an agreement of the kind alleged' (Gors v Henderson Steytler J at 91,036).

The application of the strict test requires the court to be convinced that acts performed by the plaintiff point unequivocally to a contract of the general nature of that alleged and cannot be explained in some other way. In Thwaites v Ryan Fullagar J stated the test to be:

HUGHAN -v- HUNTERS BURSWOOD PTY LTD [2025] WASC 524 (10 December 2025)

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