MERCEDES GROUP PTY LTD (TRADING AS ZORZI BUILDERS) -v- COOAH INVESTMENTS PTY... [2025] WASC 361 | Case summary

Supreme Court of WA|2025-09-04|Before: Howard J

For the reasons above, I would continue the order made by Hill J on 17 April 2025 which effectively extends the operation of the Caveat until further order.
And, for the above reasons, I will make some limited restriction orders pursuant to O 67B r 5 on the Owner's chamber summons filed 22 August 2025.
I will hear the party as needs be as to:
1. the form of the final orders;
2. the masking or restrictions necessary to the transcript and these reasons to give effect to these reasons; and
3. any orders as to costs.

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

[2] 'MJL-6' at page 32 of the first Lang affidavit.

[3] Indeed, so much so that the negative observations of Heydon J on the 'attractions of arbitration' are brought to mind: see Westport Insurance Corporation v Gordian Runoff Ltd [2011] HCA 37 (2011) 244 CLR 239 [111].

[4] Affidavit of Peter Richard Keeves made and filed 22 August 2025 (fourth Keeves affidavit) [23], [25].

[5] Affidavit of Peter Richard Keeves made and filed 5 May 2025 (first Keeves affidavit) 'PRK-3' at page 25.

[6] Part of 'PRK-3' at page 28 of the first Keeves affidavit.

[7] Part of 'PRK-3' at page 30 of the first Keeves affidavit.

[8] Affidavit of Matthew John Lang made and filed 16 April 2025 (first Lang affidavit) [6], [7] and 'MJL-2'.

[9] Affidavit of Peter Richard Keeves made 1 August 2025 and filed 5 August 2025 (third Keeves affidavit) [13] - [14].

[17] First defendant's outline of submissions filed 4 June 2025 [15(b)]

[18] 'PRK-7' at page 4 of the second Keeves affidavit.

[19] 'PRK-8' at page 5 of the second Keeves affidavit.

[20] The relevant Arbitrator's award is 'MJL-10' to the second Lang affidavit.

[21] Third Keeves affidavit [7]. See also the second Lang affidavit [16].

[22] Third Keeves affidavit [8] - [11]. See also the second Lang affidavit [17].

[24] First defendant's supplementary submissions filed 22 August 2025 [7(b)].

[25] Second Lang affidavit [34(e)(iii)]. Mr Lang deposed that interest was payable at $536.37 per day from 25 August 2025.

[26] Second Lang affidavit [33] - [35].

[31] Owner's outline of submissions filed 4 June 2025 [11], citing Mann v Paterson Constructions Pty Ltd [2019] HCA 32; (2019) 267 CLR 560 (Nettle, Gordon and Edelman JJ) at [195].

[32] First defendant's supplementary submissions filed 22 August 2025 [8].

[33] Owner's outline of submissions filed 4 June 2025 [12(a)].

[34] Owner's outline of submissions filed 4 June 2025 [12(b)].

[35] Owner's outline of submissions filed 4 June 2025 [17(g)].

[36] See Owner's outline of submissions filed 4 June 2025 [17(e)] and 'PRK-5' at section 8.2.3.4 of the Administrator's report to Creditors in the first Keeves affidavit.

[37] See, for example, the Owner's outline of submissions filed 4 June 2025 [15].

[38] Part of 'PRK-3' at page 30 of the first Keeves affidavit.

[39] See the summary of the applicable rules and principles in Antz Inya Pantz Coffee Pty Ltd v Muhl [2023] WASC 320 at [11], [18], [22].

[40] That acceptance was first made by the Owner's supplementary submissions filed after hours on Friday, 22 August 2025 prior to the hearing on Monday, 25 August 2025.

[41] Owner's supplementary submissions filed after hours on Friday, 22 August 2025 [11].

[42] This figure is derived from the figure which appeared in [31] above.

[43] This figure is derived from the figure which appeared in [31] above.

[44] Graham v Chappell (1993) 9 WAR 157 (White J).

[47] Coco C'Bay Association (Inc) v Paddison [2022] WASC 5 (Coco C'Bay).

[48] Kalx Capital Securities Pty Ltd v Richardson 1 Pty Ltd [No 2] [2021] WASC 302 (Allanson J) (Kalx [No 2]).

[49] The submission was recorded by Solomon J in [23].

[51] Midland Brick Company Pty Ltd v Welsh [2006] WASC 122; (2006) 32 WAR 287 (Midland Brick).

[52] Gangemi v Gangemi [2009] WASC 195 (Gangemi).

[53] First defendant's supplementary submissions filed 22 August 2025 [11].

[54] Palazzo Homes v Goh [2010] WASC 407 (Palazzo Homes).

[55] Deputy Commissioner of Taxation v Corwest Management Pty Ltd [1978] WAR 129 (Corwest).

[58] Corwest at p 131 l 43 (Burt CJ); p 135 l 5 (Wickham J).

[59] Corwest at p 133 l 1 (Burt CJ); p 135 l 23 (Wickham J).

[60] Pascoe v McKessar [2019] WASC 229 (Hill J).

[61] Woodford v Pattinson [No 2] [2017] WASC 334 (Pritchard J as she then was).

[63] Mr Lisle's affidavit [6], [7].

[64] Mr Lisle's affidavit [6], [7].

[65] It may be that I am taking a different view from what at least some other Courts have on this aspect: see Renascent Interiors & Refurbishers Pty Ltd v ASEL [2002] NSWSC 345 [17] (Barrett J) (Renascent Interiors).

[66] Plaintiff's reply submissions filed 21 August 2025 [25]. This was described as a conservative approach in [26] of the same submissions.

[67] See the plaintiff's reply submissions filed 21 August 2025 [19].

[68] 'MJL-6' at p 37 of the first Lang affidavit would be within the words of 'monies that ... may become payable hereunder' in cl 6 of the Contract. That is not the way the Builder put its case. I should not be taken as expressing any view as to the arguability of that proposition.

[69] Gibson v Co‑ordinated Building Services Pty Ltd70 [1989] BPR 9630; [1989] ANZ Com R 587 (Young J, as he then was) (Gibson).

[71] Renascent Interiors (Barrett J, as he then was).

[72] Gibson v Co‑ordinated Building Services Pty Ltd [1989] BPR 9630; [1989] ANZ Com R 587: emphasis in the Builder's supplementary submissions filed 21 August 2025 [16].

[74] Renascent Interiors [11], [13].

[76] Renascent Interiors [14], [15], by reference to earlier decisions of Young J, including Gibson.

[77] Renascent Interiors [21] - [23].

[78] Renascent Interiors [22], [23].

[79] Mr John's affidavit made and filed 22 August 2025.

[80] State of Victoria v Intralot Australia Pty Ltd [2015] VSCA 358.

[81] See also Hall v Aldridge [2024] WASC 155 (Cobby J) at [31].

Arbitration Act 1985

Arbitration Act 1984

The parties were agreed that the relevant principles to be applied are as follows (taken from the Builder's written submissions):[30]
1. To succeed in the application, the plaintiff must demonstrate that:
  1. the claimed interest in the land: "has or may have" substance: section 138C(2) of the Transfer of Land Act 1893 (WA) (TLA);
  2. the plaintiff has an arguable case for the existence of a caveatable interest in the land: Bashford v Bashford [2008] WASC 138 at [50]; and
  3. the balance of convenience favours the extension of the Caveat: Bashford v Bashford [2008] WASC 138 at [50].
2. To determine whether:
  1. the claim has or may have substance the Court must be satisfied that the plaintiff has a prima facie case in the sense explained in the context of an application for an interlocutory injunction; and
  2. the balance of convenience favours the extension of the Caveat, the Court must weigh the competing benefits and disadvantages to each party of extending or not extending the operation of the Caveats: Simmons v Love [2014] WASC 116 at [29] and [30].
3. The legal principles as to the extension of caveats under the TLA was addressed by Jenkins J in Cardinal Constructions Pty Ltd v Ghersinich [2009] WASC 239 (Cardinal).
4. In Cardinal, the plaintiff sought an extension to the operation of a caveat lodged pursuant to a charging clause in a building contract (as the plaintiff seeks in this present application). Her Honour stated:

"The Act s137 permits a person who claims any estate or interest in land to lodge a caveat forbidding the registration of any dealing affecting the claimed estate or interest. The purpose of a caveat is to act as a statutory injunction to the Registrar General to prevent registration of dealings with the land "so as to enable, in the ultimate analysis, a determination of the conflicting claims" Leros Pty Ltd v Terara Pty Ltd [1992] HCA 22; (1992) 174 CLR 407 at 422 (Mason CJ, Dawson and McHugh JJ) [paragraph 39].

It is clear from the statutory scheme that in an application under the Act s138C the onus is upon the caveator to satisfy the court that the caveator's claim has or may have substance. This has been interpreted as an onus to satisfy the court that there is a serious question to be tried as to whether a caveatable interest exists. The caveator must also satisfy the court that the balance of convenience favours the retention of the caveat in that it would be better to maintain the status quo until the trial of the action by preventing the caveatee from disposing of the land to a third party. If there is a serious question to be tried it will be unusual for the balance of convenience to lie in the refusing of an application to extend a caveat: Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42. This is "not a proposition of law but simply a general observation as a matter of fact": Navarac Pty Ltd v Moondancer Holdings Pty Ltd [2009] WASCA 95. (original emphasis)

MERCEDES GROUP PTY LTD (TRADING AS ZORZI BUILDERS) -v- COOAH INVESTMENTS PTY LTD (AS TRUSTEE FOR THE COOAH TRUST) [2025] WASC 361 (4 September 2025)

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