LIU -v- 43 STANNARD PTY LTD [2025] WASC 332 (15 August 2025)

1. The owner of the Property is 43 Stannard Pty Ltd (43 Stannard). It has entered an appearance to the Application. It filed an affidavit in opposition affirmed by Abbi Beckwith, a legal practitioner with the lawyers for 43 Stannard, on 14 August 2025 (Beckwith Affidavit).
2. The Application was heard by me on 14 August 2025 at which counsel for both parties attended.
3. At the conclusion of the hearing, I advised the parties that I decline to extend the caveat, and would publish reasons later. My reasons for coming to this conclusion are as follows.

1. Ms Liu deposes that on 8 December 2019 she entered into a written contract of sale with 43 Stannard to purchase Lot 4 (Sale Contract), more specifically:[1]

Lot 4 on Strata Plan 80217, Volume 65, folio 180A, being part of the group dwelling known as 43 Stannard Street, Bentely 6012 in the State of Western Australia.

1. On 9 February 2022, 43 Stannard, through its solicitor, sought to terminate the Sale Contract by serving on Ms Liu a 'purported' notice of termination and a draft Deed of Termination.
2. Ms Liu deposes that she did not execute this deed. She disputes that the purported termination of the Sale Contract is valid. Rather, she asserts that 43 Stannard has breached the Sale Contract by deliberately holding up completion of the unit on Lot 4 in order to trigger a seller's right of termination.
3. The Caveat was lodged by Ms Liu on 13 September 2024. The interest sought to be protected was described in the document executed by Ms Liu in following terms:[2]

AN EQUITABLE ESTATE OR INTEREST AS PURCHASER OF THE FEE SIMPLE OF PROPOSED LOT 4 IN A PLAN OF SUBDIVISION OF LOT 217 ON PLAN 6419

A contract of sale dated 8 December 2019, made between 43 Stannard Pty Ltd, as vendor, and Chang Liu, as purchaser in respect of proposed Lot 4 in a plan of subdivision of Lot 217 on Plan 6419 (Proposed Strata Plan 80217, Volume 65, Folio 180A).

1. However, through what I understand was an error or omission by the settlement agent, the nature of the interest registered by Landgate is in the following terms:[3]

This interest is said to be over the entirely of the Property.

1. On 25 July 2025, Ms Liu commenced proceedings in this court (CIV 1816 of 2025) seeking specific performance of the Sale Contract (Substantive Action).[4] She deposes that other purchasers of strata lots at the Property have also commenced proceedings in the Supreme Court.
2. On 11 August 2025, Ms Liu lodged a second caveat (Second Caveat). This time, the land description read:[5]

LOT 217 ON PLAN 6419, MORE PARTICULARLY FEE SIMPLE PROPOSED LOT 4 ON STRATA PLAN 80217 DESCRIBED AND SHOWN HATCHED ON THE ATTACHED PLAN.

1. Section 137 of the TLA provides that any person claiming an estate or interest in land may lodge a caveat. A caveat has the effect of preventing registration of any dealing against the land until the person who lodged the caveat has an opportunity to justify the caveat by pursuing available remedies.[6]
2. Section 138C(1) of the TLA provides that a caveator who is served with a notice under s 138B(1) may apply to the Supreme Court, in accordance with the rules of the court, for an order extending the operation of the caveat. By s 138B(2), on the hearing of an application of this kind, if the court is satisfied that the caveator's claim has or may have substance, it may make one of three orders:

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

(b) an order extending the operation of the caveat until the further order of the court; or

(c) such other orders as it thinks fit concerning the caveat or the land in respect of which the caveat was lodged.

1. If the court it not satisfied that the caveator's claim has or may have substance, then s 138C(2)(b) of the TLA requires it to dismiss the application.
2. By s 138C(3) of the TLA, an interim order under this section may be made ex parte unless the court orders otherwise.
3. In determining whether the caveat should be extended pursuant to TLA s 138C, the plaintiff has the onus of satisfying the court that:[7]

(a) the plaintiff's claim has or may have substance; and

(b) the balance of convenience favours the maintenance of the caveat.

1. As to the first issue, this is usually 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.[8] The existence of a serious question to be tried involves showing a sufficient likelihood of success to justify the preservation of the status quo in all of the circumstances. How strong the likelihood of success needs to be depends upon the nature of the rights asserted and the practical consequences likely to flow from the order sought.[9]
2. In an application for an extension of caveat it is not appropriate to attempt to resolve conflicts of evidence on affidavit, evaluate the applicant's evidence or undertake a preliminary trial.[10]
3. The requirement that the caveator's claim of substance be in respect of a claim of an 'estate or interest in land' means that that the claim must concern a proprietary interest in land[.] This requires the interest to be a proprietary interest that is recognised at law or in equity.[12]
4. The caveat will not be removed unless the claim to an estate or interest in the land appears to be without foundation.[13]
5. As to the second issue, 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.[14]
6. It is also important to consider, in assessing the balance of convenience, whether the failure to extend the caveat will have the effect of defeating the proprietary interest which is claimed.[15]
7. In summary, in order to extend the Caveat, Ms Liu must persuade the court that:[16]

(a) its claim has, or may have, substance; and

(b) the balance of convenience favours the extension of the Caveat.

4. Does the plaintiff's claim have, or may it have, substance?

1. It is well established that a purchaser under a contract of sale of land has an equitable interest in the land commensurate with its ability to specifically enforce the contract.[17]
2. The issue in the present case is that the equitable interest claimed by Ms Liu is only over Lot 4, not the whole of the Property. Hence the application to amend the Caveat, to make it clear that the equitable interest claimed is only over Lot 4. With that amendment, and only with that amendment, I would be satisfied that Ms Liu's claim on the face of the Caveat has, or may have, substance. Its merits will be determined in the Substantive Action.
3. The power in TLA s 138C(2)(a)(iii) to make 'such other orders as it thinks fit concerning the caveat' would appear to give the court the power to amend the caveat. However, the power is conditional upon the court being satisfied that the caveator's claim has or may have substance. There is an issue here as to whether it is the underlying claim of the caveator which must have substance (suggested by the opening words of TLA s 137(1)) or whether it is the claim as described in the caveat that must have substance. In the former, there would be a power to amend the terms of the caveat to more accurately describe the caveator's claim. In the latter, if the claim as set out on the face of the caveat did not have substance, the precondition to the power in TLA s 138C(2)(a)(iii) would not have been met. For the reasons which follow, I do not need to decide this issue.

5. Does the balance of convenience favour extension of the caveat?

1. In relation to the balance of convenience, I note that Ms Liu has filed an undertaking to pay damages.
2. An order extending the Caveat until further order has the effect of preserving the status quo pending the determination of the Substantive Action. As set out at [14], this is the very purpose of a caveat. If Lot 4 is allowed to be sold, this will have the effect of defeating the proprietary interest which Ms Liu claims. It would mean that specific performance could not be ordered, and she would be left to a remedy in damages.
3. Counsel for 43 Stannard appeared to accept this point. However, his submission was that the existence of the Second Caveat, which accurately reflects Ms Liu's interest and no more, means that the balance of convenience lies in allowing the Caveat to lapse, as the Second Caveat preserves the status quo.
4. Counsel for Ms Liu raised a concern as to the possible application of TLA s 138D, which provides:

(1) If a section 138A caveat -

(a) is withdrawn after a notice under section 138B(1) is served on the caveator but before the caveat could lapse under section 138B(2); or

(b) has lapsed under section 138B(2); or

(c) no longer has effect because of the operation of an order made, or a dismissal, under section 138C by the Supreme Court, then the caveator cannot lodge with the Registrar any further section 138A caveat in respect of the same land unless -

(d) the consent of the proprietor to do so and, if the notice issued under section 138B(1) was issued on the application of a judgment creditor, the consent of the judgment creditor to do so are endorsed on the further caveat; or

(e) the Supreme Court has made an order giving leave for the lodgement of the further caveat and a copy of that order has been served on the Registrar.

(2) If a caveat has been withdrawn before a notice under section 138B(1), if any, is served on the caveator then nothing in subsection (1) prevents the caveator from lodging a further section 138A caveat in respect of the same land.

1. In my view, this concern is misplaced. The Second Caveat is not 'in respect of the same land' as the Caveat. The Caveat is over the whole of the Property. The Second Caveat is only over Lot 4. There is insufficient doubt about this conclusion to justify the court granting Ms Liu leave to file the Second Caveat pursuant to TLA s 138D(1)(e).
2. It is also common ground across the bar table that no dealing has been lodged over Lot 4 between when the Caveat was lodged and when the Second Caveat was lodged which might give rise to a priority issue.
3. In my view, the legitimate interest of Ms Liu in maintaining the status quo in relation to Lot 4 is adequately protected by the Second Caveat. There is no need to amend and extend the Caveat. It follows that the balance of convenience lies in letting the current, incorrect, Caveat simply lapse.
4. For those reasons I declined to extend it.

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

[6] Brogue Tableau Pty Ltd v Binningup Nominees Pty Ltd [2007] WASCA 179 [68] (Buss JA, with whom Wheeler JA agreed); Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42, 50 (Owen J, with whom Malcolm CJ and Walsh J agreed).

[7] Navarc Pty Ltd v Moondancer Holdings Pty Ltd [2009] WASCA 95 [20] - [21] (Pulllin JA, with whom Miller and Newnes JJA agreed); Custom Credit (48) (Owen J, with whom Malcolm CJ and Walsh J agreed); Bashford v Bashford [2008] WASC 138 [47] (Beech J) (Bashford); Bride v The Registrar of Titles [2015] WASC 11 [12] (Edelman J) (Bride).

[9] Bateson v Jones [2013] WASC 8 [19] (Pritchard J).

[[.]](https://aus01<a name=) [60] (Strk J) (Prem).

[12] Prem [60].

[17] Stern & Anor v McArthur & Anor [1988] HCA 51; (1988) 165 CLR 489, 511 (Brennan J), 537 (Deane and Dawson JJ); Bahr v Nicolay [No 2] [1988] HCA 16; (1988) 164 CLR 604, 610 - 612 (Mason CJ and Deane J), 645 - 647 (Brennan J); Wyloo Metals Pty Ltd v Quarry Park Pty Ltd [2024] WASCA 38 [404] (Buss P and Livesey AJA).