Transfer of Land Act 1893 (WA), s 138 and s 140

Injunction granted until issues between parties finally resolved

Allen v Snyder [1977] 2 NSWLR 685

Cameron v Murdoch [1983] WAR 321

Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42

Deputy Commissioner of Taxation v Corwest Management Pty Ltd [1978] WAR 129

Eng Mee Yong v Letchumanan [1980] AC 331

Giacci Bros Pty Ltd v Tyrrell, unreported; SCt of WA (Templeman J); Library No 980106; 18 February 1998

Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101

Green v Green (1989) 17 NSWLR 343

Halse v Embling, unreported; FCt SCt of WA; Library No 970734; 22 December 1997

Kuper v Keywest Constructions Pty Ltd [1990] WAR 419

Lydon v Ryding & Anor [2002] WASC 308

Porter v McDonald [1984] WAR 271

Professional Services of Australia Pty Ltd v Mila Properties Pty Ltd [2004] WASC 30

Wratten v Hunter [1978] 2 NSWLR 367

Atwell v Atwell [2002] TASSC 119

Bomford v Barrett [2002] WASC 304

Carroll v Azolia Pty Ltd [2000] WASC 95

Clos Farming Estates Pty Ltd v Easton & Anor [2001] NSWSC 525

Cohen v Peko Wallsend [1986] HCA 70; (1986) 68 ALR 394

Frigo v Cultiaci, unreported; CA of NSW; 17 July 1998

Harvie v Stevens [2004] NSWSC 1217

Lewis v Lewis [2001] NSWSC 321

McBride v Sandland (1918) 25 CLR 691

McKechnie v Witworth Weir, unreported; SCt of NT; No Ap4 of 1988; 21 October 1988

Multan Pty Ltd v Ippoliti & Anor [2006] WASC 130

Murdocca v Murdocca [2002] NSWSC 159

Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583

Oates v Blackburn [1999] WASC 112

Pindan Pty Ltd v Sunny's Redevelopment Pty Ltd & Anor [2001] WASC 104

Police & Nurses Credit Society v Weber [2003] WASC 45

Redden v Wilks & Anor [1979] WAR 161

Shaw v Yarranova Pty Ltd & Anor [2005] VSC 94

State of Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146

Vandyke v Vandyke (1976) 12 ALR 621

Walton Stores (Interstate) v Maher [1988] HCA 7; (1988) 164 CLR 387

Watson v Foxman (1995) 49 NSWLR 315

1 BLAXELL J: The present proceedings arise from a very bitter and unfortunate family dispute. The plaintiff is the middle-aged daughter of the 79-year-old defendant, and claims to be entitled to a beneficial interest in the latter's house property in Victoria Park.

2 On 23 February 2004 the plaintiff lodged an absolute caveat against the title to the property claiming an estate or interest "in fee simple as the beneficiary of an express trust and/or as the beneficiary of a constructive trust". Soon afterwards the plaintiff commenced proceedings in this Court seeking a declaration that the property is held on trust for the plaintiff (subject to a life interest to the defendant) as well as orders giving effect to that claim. The plaintiff alternatively claims an order for equitable compensation.

3 By a chamber summons dated 12 September 2006 the defendant has called on the plaintiff to show cause why the caveat should not be removed and applied for numerous other orders. All but one of these proposed orders would be ancillary to removal of the caveat, but the remaining application is for an order that the plaintiff:

"Pay compensation to the defendant ... in the amount of $35,000 for damages sustained by the defendant due to the plaintiff's lodgement of the absolute caveat over the defendant's said property, without reasonable cause."

4 This last application is in the nature of a personal injuries claim in respect of depression, stress and anxiety allegedly suffered by the plaintiff as a result of lodgement of the caveat.

5 These are my reasons for decision in respect of the matters the subject of the chamber summons.

6 I also have before me an application by the defendant (by chamber summons dated 13 October 2006) to strike out portions of the plaintiff's affidavit sworn on 28 September 2006 in opposition to removal of the caveat. There are some 18 objections to 12 paragraphs of the affidavit supported by 10 pages of written submissions. The common thread in all of these objections is that the material objected to is irrelevant to the issue whether the plaintiff has a caveatable interest in the land.

7 There would be some substance to this objection if it were not for the fact that the passages in question are largely responsive to a mass of similar material to be found in the defendant's affidavit sworn on 11 September 2006. This latter affidavit annexes and affirms the accuracy of assertions made in some 17 pages of correspondence sent by the defendant to the plaintiff reviewing the full history of their relationship.

8 Some of this material is marginally relevant to the issues before me, but the bulk of it is clearly inadmissible. In these circumstances I will simply ignore the irrelevant portions of all affidavits. The defendant's application to strike out the plaintiff's affidavit will be dismissed, and there will be no order as to costs.

9 Section 138 of the Transfer of Land Act provides the court with a very wide discretion as to the orders that may be made. Accordingly, the court may order that the caveat be removed, or alternatively that it be amended (Porter v McDonald [1984] WAR 271, 275, Professional Services of Australia Pty Ltd v Mila Properties Pty Ltd [2004] WASC 30 [14]). An order amending a caveat will sometimes be appropriate when there is an obvious misdescription in the interest claimed. It is difficult to imagine any circumstances which would justify an amendment allowing a caveator to claim a totally different interest from that previously claimed.

10 The court also has power in appropriate circumstances to order removal of a caveat, but at the same time impose an injunction maintaining the status quo between the parties until their dispute can be resolved (Lydon v Ryding & Anor [2002] WASC 308, Giacci Bros Pty Ltd v Tyrrell, unreported; SCt of WA (Templeman J); Library No 980106; 18 February 1998). This might be the appropriate course when there is an arguable case as to the interest claimed but that interest is not in reality of a proprietary kind (eg when it is a "mere equity").

11 It is well-established that on the hearing of a summons under s 138 the onus is on the caveator:

" ... to demonstrate that there is a valid caveatable interest or, more correctly, that there is a serious question to be tried on the issue." (Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42, 48.)

12 The existence of a "serious question" will be established if it is shown that the claim is more than merely frivolous or vexatious, and that on the evidence before the court the caveator might ultimately succeed in establishing the interest on which the caveat purports to be founded: Halse v Embling, unreported; FCt SCt of WA; Library No 970734; 22 December 1997. In this regard:

"The practice with respect to the removal of caveats is one of long standing. The caveat will not be removed unless the claim to an estate or interest in the land appears to be without foundation. The courts will not, except in the most exceptional case, decide the matter on summons." (Porter v McDonald (supra), 276.)

13 However, the court will also take account of the balance of convenience. In Eng Mee Yong v Letchumanan [1980] AC 331, 337, the Privy Council held that when a caveator raises a serious question to be tried:

" ... he must go on to show that on the balance of convenience it would be better to maintain the status quo until the trial of the action, by preventing the caveatee from disposing of his land to some third party."

14 In Custom Credit v Ravi (ibid at 50) Owen J (with whom the rest of the Full Court agreed) noted that although the considerations relevant to an interim injunction are applicable to a caveat, they arise within a peculiar statutory context. His Honour went on to state:

"In my opinion, the balance of convenience is a factor to be considered in an application under s 138. However, it seems to me that interlocutory removal of a caveat where an arguable case as to the existence of the caveatable interest has been demonstrated, will be unusual."

15 The defendant's application for compensation is made under s 140 of the Transfer of Land Act, which provides that:

"Any person lodging any caveat ... without reasonable cause shall be liable to make to any person who may have sustained damage thereby such compensation as a Judge on a summons in chambers shall deem just and order."

16 Quite obviously, the question of compensation cannot be considered on an interlocutory basis, and can only arise when the court is in a position to finally determine that there is no caveatable interest. Even then, the mere fact that there is no caveatable interest does not establish that the caveat was lodged without reasonable cause. (Deputy Commissioner of Taxation v Corwest Management Pty Ltd [1978] WAR 129, 141.) The onus is on the caveatee to prove that at the material time the caveator did not honestly believe on reasonable grounds that there was a caveatable interest (Kuper v Keywest Constructions Pty Ltd [1990] WAR 419, 434 and 436).

17 The defendant was born in the Netherlands and emigrated to Australia with her husband in 1953. Since 1960, the defendant has been the sole registered proprietor of the house property at 21 King George Street, Victoria Park ("the property"). The defendant resided in the property with her late husband until his death in 1989, and has continued to live there ever since.

18 The plaintiff is the only child of the defendant, and as an adult returned to live in the property between 1985 and 2004. The plaintiff occupied an upstairs portion of the property, and (as I understand the facts) lived there with members of her own family including from 1998 her second husband.

19 There are issues between the parties as to the circumstances in which the plaintiff returned to live in the property in 1985. According to the defendant, she was "pressured" by the plaintiff into allowing the latter to move in. The plaintiff's version of events is that she reluctantly returned to live at the property in order to care for her parents and especially her father who had been unwell for many years.

20 It is the plaintiff's evidence that her parents persuaded her to sell her own house at Lathlain Park on the "promise" that "you don't need your own home as this home [viz. the property] will be yours one day". According to the plaintiff in reliance on this promise she gave up the benefit of owning her own house and also expended a significant portion of the proceeds of sale on renovations to the property. She later spent other sums in the same way in reliance on the promise (which she claims was renewed a number of times).

21 It is common ground that the plaintiff ceased to live in the property in acrimonious circumstances on 6 February 2004. The caveat was lodged about two weeks later, and the proceedings between the parties then ensued. It is relevant to note that the plaintiff's statutory declaration in support of the caveat did not assert all of the facts subsequently pleaded in her statement of claim. In particular it did not assert that the defendant had at any time resiled from her "promise".

22 The defendant has had difficulty in funding her legal representation in the proceedings, because she has little income as a pensioner, but does not qualify financially for legal aid. In this regard, the property is her only significant asset and it has a very substantial value (which the defendant estimates to be approximately $1,000,000). According to the defendant, although she was able to obtain a personal loan of $30,000 to pay some of her past legal expenses, the only possible way of funding her future representation is by means of a reverse mortgage over the property. However she is prevented from doing this by the caveat.

23 The defendant is also in need of funds to pay for a hip replacement operation (to her left hip) due to chronic osteoarthritis. According to the defendant's general practitioner Dr A T Forward, she is in urgent need of this operation but will have to wait a period of 12 - 18 months if it is performed within the public health system. If the surgery is performed privately, it can be attended to within a very short time, but will cost at least $25,000. Dr Forward's affidavit further states:

"18. In addition to funds for her hip replacement surgery, Mrs in de Braekt also urgently needs funds for her post-surgical care and ongoing safety and welfare, including rehabilitation (physiotherapy) sessions, nursing care, home cleaning/duties and meals assistance, tilt up bed with a pull up overhead handle and safety rails, a lift up chair, wheelchair, walking frame, crutches, orthopaedic and GP follow up consultations, medication and dressings, installation of ramps and handrails in her home, as well as improved lighting in and around her home and modifications to her bathroom. These additional necessary costs will be between $20,000.00 - $30,000.00"

24 Additionally, it is the defendant's evidence that she urgently needs to expend the following amounts:

- $35,000 to purchase a car capable of accommodating a wheelchair or walking frame, so that she can attend medical and other appointments. (Dr Forward supports the need for this purchase.)

- $25,000 to repair leaks in the roof of the house on the property.

- $35,000 to replace a number of retaining walls around the house which are in a "state of collapse".

- Not less than $40,000 to carry out other repairs and modifications to the house "to make it safer and easier for me to move around in". (Which sum would seem to overlap with Dr Forward's estimate.)

- $10,000 to install a barrier around the swimming pool on the property to comply with local council requirements. In this regard, "exercising in my pool everyday will be an important part of my rehabilitation after my hip replacement operation".

25 The plaintiff disputes either the urgency or the need for most of the above expenditures, but is "not opposed in principle to agreeing to a reverse mortgage if my mother genuinely requires urgent medical treatment and has no other way to meet her legal fees". The plaintiff has elaborated on this stance by offering a detailed undertaking which I will refer to shortly.

26 The defendant's application for $35,000 compensation is in essence a personal injuries claim. In this regard the defendant deposes to her great "stress and anxiety about the presence of the absolute caveat over my home, and my inability to raise any funds through a reverse mortgage". According to the defendant she has also suffered loss of appetite, a loss of more than 8 kilograms in weight, and disturbed sleeping patterns. The affidavit from Dr Forward corroborates these assertions.

Whether there is a serious question to be tried

27 There are two conflicting versions as to the circumstances giving rise to the plaintiff's claim to a beneficial interest in the property. It is neither appropriate nor possible for me to determine on the affidavit evidence which of those two versions might be correct. The essential question for present purposes is whether or not the facts asserted by the plaintiff are capable of establishing the interest that she claims in her caveat.

28 In my opinion, the facts on which the plaintiff relies cannot support the interest described in the caveat. The caveat claims that the plaintiff is presently entitled to an estate in fee simple when clearly she is not. At most, her claim is that she will be entitled to become registered as the proprietor in fee simple at some future time when her mother ceases to own the property. That is a very different interest from the one claimed in the caveat.

29 It follows that the present caveat cannot be allowed to stand. The issue in these circumstances is whether the caveat might properly be amended to correctly describe the real interest claimed. Alternatively, and if that interest is not in reality a proprietary interest, the question is whether the order for removal of the caveat should be accompanied by an injunction preserving the status quo until the issues between the parties can be finally resolved. These are all matters which turn upon the true nature of the interest claimed by the plaintiff.

30 The plaintiff firstly claims an interest in the property as the beneficiary of an express trust. However, an express trust in respect of any interest in land is unenforceable unless it is "manifested and proved by writing signed by a person who is able to declare the trust" (Property Law Act 1969, s 34). Although there is an exception to this requirement of writing when the statute would otherwise be "an instrument of fraud" (Allen v Snyder [1977] 2 NSWLR 685, 689) this principle does not apply to a voluntary oral declaration of trust by a person who is the owner of the whole beneficial interest in land (Wratten v Hunter [1978] 2 NSWLR 367). Even if it can be said in the present instance that the defendant's alleged declaration of trust was not voluntary, but made for consideration, the plaintiff's statutory declaration in support of the caveat does not assert any facts which might go to establish equitable fraud. In my opinion, there is no serious issue to be tried in respect of the plaintiff's claim to an interest under an express trust.

31 The plaintiff alternatively claims a beneficial interest under a constructive trust, and pursuant to the express terms of s 34 of the Property Law Act, such a trust need not be in writing. The court can impose a constructive trust if satisfied that the parties had a common intention that the plaintiff would have a beneficial interest in the property, and that the plaintiff acted to her detriment in reliance on that common intention (Green v Green (1989) 17 NSWLR 343). By enforcing a constructive trust, the court would be:

" ... giving effect to an arrangement based upon the actual intentions of the parties, not a rearrangement in accordance with considerations of justice, independent of their intentions and founded upon their respective behaviour in relation to the [property]." (Allen v Snyder, ibid, at 693.)

32 In the present instance, the essential facts alleged to give rise to a constructive trust are that the defendant persuaded the plaintiff to move into the property on the basis of a promise that the property would one day be hers. In reliance upon this promise, the plaintiff then sold her own house and expended part of the proceeds of sale on improvements to the property. Accordingly, the plaintiff is said to have acted to her detriment in the expectation that she would one day acquire the property, but without any precise indication as to how or when that would occur.

33 In my opinion, these alleged facts are analogous to some of those dealt with by Brinsden J in Cameron v Murdoch [1983] WAR 321 (and specifically the facts referred to at 352). In that case, the imprecision in the arrangement under which the plaintiff acted to his detriment did not prevent the grant of relief, and the equity that was found to have arisen was satisfied by an order allowing him to purchase the land at a discount (360, 363). That decision was later upheld upon an appeal to the Privy Council ((1985-1986) 63 ALR 575).

34 Similar facts were dealt with in Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101 where the High Court after reviewing the authorities, stated (at 112):

"In these cases, the equity which founded the relief obtained was found in an assumption as to the future acquisition of ownership of property which had been induced by representations upon which there had been detrimental reliance by the plaintiff. This is well recognised variety of estoppel as understood in equity and may found relief which requires the taking of active steps by the defendant."

In Giumelli it was also made clear that a constructive trust in such circumstances is a "remedial response" to the plaintiff's right to equitable intervention. However, relief by way of a constructive trust will only be imposed if there is no other appropriate equitable remedy (112 - 113).

35 In my opinion, if the plaintiff ultimately satisfies the court as to her version of events, there will be an arguable case for the declaration of a constructive trust. However, there will be no basis for an order which immediately vests the land in the plaintiff, because the time for performance of the alleged promise will not have arrived.

36 It is questionable in these circumstances whether the plaintiff has any present proprietary interest in the land which is capable of being the subject of a caveat. Furthermore, and as was stated by McLure J in Lydon v Ryding & Anor [2002] WASC 308 at [20]:

" ... it is difficult to see how it can be said that in the case of a truly remedial constructive trust, a person has an estate or interest in property which can be protected by caveat before the remedy has been obtained."

37 In light of these considerations I am not prepared to make an order amending the present caveat. In any event, it seems to me that the interest claimed by the plaintiff could be as easily protected by an interlocutory injunction as by an amended caveat. Furthermore an injunction could be more easily moulded to accommodate the balance of convenience, whereas the continued presence of a caveat would inhibit the defendant's ability to obtain a mortgage.

38 It follows that the only residual question is whether there should be an injunction to preserve the status quo until the issues between the parties can be finally resolved. For the reasons already outlined, I consider that the plaintiff has established a serious issue to be tried in respect of the subject matter of such an injunction. It is also obvious that damages would not be an adequate remedy.

39 The evidence before me shows that the defendant is in urgent need of a hip replacement operation, and that the only practical means of funding that operation will be by way of a reverse mortgage over the property. I also accept that the defendant can only meet the future legal costs of defending the plaintiff's action if there is similar mortgage funding.

40 The plaintiff acknowledges the need for expenditure in these two areas and has offered an undertaking to agree to a reverse mortgage so that the defendant can obtain funding for these limited purposes. However, her undertaking as to the medical costs would be subject to the following qualifications:

"- The presentation to the Plaintiff's solicitors of a letter from the surgeon who is to perform urgent left hip replacement surgery upon the Defendant setting out the estimated costs of the surgery, hospital, anaesthetic and other costs associated with the surgery ...

- The amount of the mortgage advance for hospital, surgical and anaesthetic costs be limited to a maximum of $30,000.00."

41 Furthermore, the plaintiff's proposed undertaking in respect of future legal costs is subject to the following conditions:

"- The provision by the Defendant's solicitors of a draft bill of solicitor-client costs for the Defendant's anticipated future legal costs in these proceedings;

- The agreement by the Plaintiff's solicitors as to the reasonableness of the estimate of anticipated future legal costs in these proceedings ... ; and

- This undertaking is not given in respect of any future legal costs incurred by the Defendant when Megan in de Braekt is the solicitor acting for the Defendant in the proceedings."

42 As to the quantum of likely medical expenses, there is no reason why the estimate in Dr Forward's affidavit of $25,000 for costs of surgery should not be accepted. Dr Forward provides additional estimates of $20,000 - $30,000 for associated costs including home modifications, but these estimates may not be as reliable.

43 With regard to the defendant's future legal costs, it is obviously inappropriate that the plaintiff be given a right to vet the level of expenditure. As to the last of the proposed conditions, it is hard to ignore the fact that the defendant's present solicitor is the plaintiff's estranged daughter. However, the appropriateness of Ms in de Braekt's continued representation of her grandmother is an issue that will be decided in an application by the plaintiff to restrain her from so acting. That application has been heard by another Judge and should be determined shortly. Whatever the outcome, all that matters for present purposes is that the defendant will be in need of funding for her future legal representation.

44 According to the defendant, she is also "struggling to meet the monthly repayments" for the $30,000 personal bank loan obtained to meet her past legal expenses. Notwithstanding this payment she still owes her previous solicitors "about another $30,000 in legal fees". Based upon my perusal of the court file this would seem to be a surprisingly large sum, and it is not at all clear to me how such costs might have been incurred.

45 The defendant also wishes to fund additional items of expenditure by way of reverse mortgage. Although the evidence does not impress me as to the urgency of these other expenditures, it is perhaps unfair to disregard the wishes of a 79-year-old woman in a deteriorating state of health. Time is not on her side, and the present application may be her last opportunity to use her only substantial asset in a manner that she considers to be in her own best interests. In the event that the plaintiff's claim is ultimately unsuccessful, the defendant's inability to access funds in her declining years will have caused her a great injustice.

46 These are compelling circumstances which call for a fairly robust and broad-brushed resolution of the issues at hand. In order to do justice on an interim basis I consider it necessary to impose an injunction restraining the defendant from dealing with the property in a manner which is generally inconsistent with the plaintiff's claim. However, that injunction should not prevent the defendant raising funds by way of reverse mortgage to cover her medical and legal expenses as well as a further modest amount to be used in whatever manner she thinks fit. In my judgment, it is appropriate that the defendant be permitted to raise a total maximum sum of $200,000 in this way.

47 The above orders obviously have the potential to diminish what the plaintiff will ultimately receive if she is successful with her action. This is not necessarily inconsistent with her claim because she does not allege a promise that she would ultimately receive the house free of all encumbrances. Furthermore, if the plaintiff had remained on good terms with her mother it is unlikely that she would have objected to a mortgage which was necessary to provide for the latter's needs.

48 In my view, the injunction to be imposed should not continue indefinitely but should be conditional upon the plaintiff prosecuting her action without delay. In the event that there is any unreasonable delay on the part of the plaintiff, the defendant will have good grounds to apply for a discharge of the injunction.

49 I am not aware of any previous case where damages for personal injuries have been made the subject of a claim for compensation under s 140 of the Transfer of Land Act. Counsel have not made submissions as to the appropriateness of such a claim, but assuming that it can be validly made, there is simply no basis for an order for compensation in the present instance.

50 In this regard, there is no evidence capable of satisfying me that at the time of lodgement, the plaintiff did not honestly believe on reasonable grounds that she had a caveatable interest. The evidence also fails to establish that the defendant's depression, stress and anxiety has resulted from the lodgement of the caveat, as distinct from equally probable causes such as the break down in the relationship with her daughter, the issuing of the writ, and the deterioration in her physical health.

51 It inevitably follows that the application for compensation must be dismissed.

52 For all of the reasons outlined above, I propose to make the following orders:

1. The application by the defendant (by chamber summons dated 13 October 2006) to strike out portions of the plaintiff's affidavit sworn 28 September 2006 be dismissed, and there be no order as to costs.

2. Caveat No 1799676 be removed forthwith and the appropriate entry be made in the Register Book by the Registrar of Titles.

3. Upon the plaintiff filing an undertaking as to damages in the usual form, and until further order, the first defendant be restrained from creating, disposing of or dealing with any estate or interest in the property at 21 King George Street, Victoria Park (being the whole of the land in Certificate of Title Volume 1211 Folio 98) other than mortgaging the property (by way of reverse mortgage) to secure a maximum principal sum of $200,000.

4. Each party is to have liberty to apply on seven days notice for variation or discharge of the above injunction.

5. The defendant's application for compensation under s 140 of the Transfer of Land Act be dismissed.

6. The costs in respect of the defendant's chamber summons dated 12 September 2006 be costs in the cause in action CIV 1661 of 2004.