MATTER : Section 138C of the Transfer of Land Act 1893 (as amended)

Transfer of Land Act - Caveat - Application to extend operation of caveat to protect an option to buy land - The caveat being later in time than the first defendant's mortgage which the first defendant seeks to enforce - Turns on own facts

Transfer of Land Act 1893 (as amended), s 138C

The order extending the operation of the caveat discharged, with costs

Lyus v Prowsa Developments Ltd [1982] 2 All ER 953

1 WHITE AUJ: The plaintiff seeks an order, pursuant to s 138C of the Transfer of Land Act extending the operation of the caveat numbered H735327 ("the Caveat") registered by it against the title of Lot 140 on Plan 8242, being the whole of the land comprised in Certificate of Title Volume 2044 Folio 156 ("the Property") to secure the plaintiff's rights under an option to purchase the Property at a price of $245,000.00 ("the Option").

2 The application to extend the operation of the Caveat was opposed by National Australia Bank Ltd ("the Bank").

3 On 1 February 2002, I ordered that the order made by McLure J extending the operation of caveat number H735327 be discharged and that the plaintiff pay the Bank's costs of the application, to be taxed. I indicated that I would file reasons for that decision in due course. These are my reasons.

4 The option was dated 13 June 2000 and was to be available until 11 June 2005. The plaintiff has not exercised that option.

5 There is an onus on the plaintiff on such an application to satisfy the Court that it has or may have a claim that has substance: Pindan Pty Ltd v Sonny's Redevelopment Pty Ltd [2001] WASC 104, per Murray J, 30 April 2001.

6 The Bank is the registered proprietor of a first mortgage number G659954 ("the Mortgage") registered against the title of the Property on 12 December 1997. There is no suggestion that the Bank was a party to or consented to the grant of the Option in respect of which the Caveat was lodged on 4 July 2000.

7 The mortgagor has been in default under the Mortgage and the Bank is entitled to exercise its power of sale. There is no suggestion that the Bank or its agents have been guilty of any fraud. In the absence of any such suggestion, it is clear that the bank has an indefeasible title: Mark Anthony Conlan (as Liquidator of Oakleigh Acquisitions Pty Ltd) v Registrar of Titles [2001] WASC 201, per Owen J, 3 August 2001.

8 The Bank's prior registered interest in the Property must, in my judgment, prevail over the subsequently registered interest of the plaintiff.

9 It is, I think, unnecessary for me to canvass at any length the allegation by the Bank that the option and the caveat are merely devices to resist the claims of creditors to the assets of the mortgagor and her estranged husband, in relation to which certain allegations were made in the affidavit sworn by Michael Gordon Frenken, an officer of the Bank, on 31 January 2002. Counsel for the plaintiff has had little opportunity to consider that affidavit and I shall disregard it for the purposes of this decision.

10 In my opinion, the prior right of the Bank to exercise the power of sale under the Mortgage cannot be defeated by the proprietor of a subsequent equitable interest in the Property. That seems to me to be the point of substance and it has not been answered by the plaintiff.

11 For the aforegoing reasons, I made the order indicated above.