SEE YOU LATER PTY LTD -v- DUNROSS ENTERPRISES PTY LTD [2026] WASC 201

[2026] WASC 201 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : SEE YOU LATER PTY LTD -v- DUNROSS ENTERPRISES PTY LTD [2026] WASC 201 CORAM : ACTING MASTER GRIFFIN HEARD : 13 & 15 MAY 2026 DELIVERED : 28 MAY 2026 FILE NO/S : CIV 2520 of 2025 BETWEEN : SEE YOU LATER PTY LTD (ACN 617 720 199) First Plaintiff BUCCI NOMINEES PTY LTD (ACN 625 825 270) Second Plaintiff AND DUNROSS ENTERPRISES PTY LTD (ACN 059 596 057) Defendant FILE NO/S : CIV 1526 of 2026 BETWEEN : BUCCI NOMINEES PTY LTD (ACN 625 825 270) Plaintiff AND DUNROSS ENTERPRISES PTY LTD (ACN 059 596 057) Defendant -- 1 of 17 -- [2026] WASC 201 Page 2 Catchwords: Conveyancing - Real property - Caveats - Application to extend operation of Caveat - Whether plaintiff has established a serious issue to be tried as to caveatable interest - Balance of convenience - Amendment of caveat - Turns on own facts Legislation: Corporations Act 2001 (Cth) s 601AH(5) Consolidated Practice Directions 4.3.4 Transfer of Land Act 1893 (WA) s 138B, s 138B(2), s 138B(2)(a), s 138C, s 138C(2), s 138D, s 138D(1)(e) Result: Applications granted Leave granted to lodge further caveat in amended form Operation of caveat, as amended, extended Category: B Representation: CIV 2520 of 2025 Counsel: First Plaintiff : T M Petherick Second Plaintiff : T M Petherick Defendant : M D Williams Solicitors: First Plaintiff : Petherick Cottrell Lawyers Second Plaintiff : Petherick Cottrell Lawyers Defendant : Vogt Legal -- 2 of 17 -- [2026] WASC 201 Page 3 CIV 1526 of 2026 Counsel: Plaintiff : T M Petherick Defendant : M D Williams Solicitors: Plaintiff : Petherick Cottrell Lawyers Defendant : Vogt Legal Case(s) referred to in decision(s): Badah Pty Ltd v One Investment Administration Ltd as trustee for the Alt No 1 Trust [2017] WASC 96 Bashford v Bashford [2008] WASC 138 Bride v Registrar of Titles [2015] WASC 11 Cardinal Constructions Pty Ltd v Ghersinich [2009] WASC 239 Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42 Difranco v Rattlebay Pty Ltd [2010] WASC 103 Landlush Pty Ltd v Rutherford [2002] QSC 219; Field v Gaborit [2002] QSC 466 Navarac Pty Ltd v Moondancer Holdings Pty Ltd [2009] WASCA 95 Professional Services of Australia Pty Ltd v Mila Properties Pty Ltd & Anor [2004] WASC 30 Yardley v Favell Gordon (Aust) Pty Ltd & Anor [2005] WASC 212 Zorostar Pty Ltd v Arian Investments Pty Ltd [2019] WASC 415 -- 3 of 17 -- [2026] WASC 201 ACTING MASTER GRIFFIN Page 4 ACTING MASTER GRIFFIN: Introduction 1 In CIV 2520 of 2025, by chamber summons filed on 29 December 2025 and amended on 29 April 2026, the first plaintiff, See You Later Pty Ltd (See You Later), seeks leave of the Court to lodge a further caveat against the defendant's, Dunross Enterprises Pty Ltd (Dunross), land being Lot 1091 on Deposited Plan 419688 in Certificate of Title Volume 4022 Folio 930 (Lot 1091) pursuant to s 138D(1)(e) of the Transfer of Land Act 1893 (WA) (TLA). 2 In CIV 1526 of 2026, by originating summons filed on 21 April 2026, Bucci Nominees Pty Ltd (Bucci), the first plaintiff in CIV 1526 of 2026 and second plaintiff in CIV 2520 of 2025, seeks orders extending the operation of caveat Q816021 lodged by it over Dunross' land described as Lot 1091 pursuant to s 138B(2) of the TLA. Documents relied upon 3 The plaintiffs rely upon the following outlines of submissions: (a) outline of submissions filed on 29 April 2026 in CIV 2520 of 2025 (Plaintiffs' 29 April 2026 Submissions); (b) outline of submissions filed on 29 April 2025 in CIV 1526 of 2026 (Bucci's 29 April 2026 Submissions); (c) reply submissions filed on 20 May 2026 in CIV 2520 of 2025, at folio 34 of the Court's record (Plaintiffs' First 20 May 2026 Reply Submissions); (d) reply submissions filed on 20 May 2026 in CIV 2520 of 2025, at folio 35 of the Court's record, and in CIV 1526 of 2026 (Plaintiffs' Second 20 May 2026 Reply Submissions). 4 The plaintiffs also rely upon the following affidavits of: (a) Luke Petherick made on 29 December 2025 (First Petherick Affidavit) and 21 January 2026 (Second Petherick Affidavit), both filed in CIV 2520 of 2025; (b) Michael John Holleyman made on 17 February 2026 (First Holleyman Affidavit), 13 May 2026 (Second Holleyman Affidavit) and 20 May 2026 (Third Holleyman Affidavit), each filed in CIV 2520 of 2025; and -- 4 of 17 -- [2026] WASC 201 ACTING MASTER GRIFFIN Page 5 (c) Lloyd Daniel Bucci made on 20 April 2026 (First Bucci Affidavit), 13 May 2026 (Second Bucci Affidavit) and 20 May 2026 (Third Bucci Affidavit), each filed in CIV 1526 of 2026. 5 Dunross relies upon two outlines of submissions filed in CIV 2520 of 2025 on 7 May 2026 and 21 May 2026. It also relies on the following affidavits of: (a) Stephen Patrick Gorman made on 7 May 2026 (First Gorman Affidavit), filed in both CIV 2520 of 2025 and CIV 1526 of 2026, and 18 May 2026 (Second Gorman Affidavit), filed in CIV 1526 of 2026; (b) Wendy Ellen Shackleton made on 15 January 2026 (First Shackleton Affidavit - ASIC Searches) and 18 May 2026 (Second Shackleton Affidavit - Landgate Searches), both filed on CIV 2520 of 2025; and (c) Mark Daniel Williams made on 20 May 2026 (First Williams Affidavit) and 21 May 2026 (Second Williams Affidavit), both filed on CIV 2520 of 2025. These affidavits annexed the Joint Form of General Conditions for the Sale of Land. Facts 6 Dunross is the registered proprietor of two adjoining lots of land in Fremantle, being Lot 108 on Deposited Plan 38156 in Certificate of Title Volume 2227 Folio 917 (Lot 108) and Lot 1091, which are together known as the Rialto Studio Apartments, 36 - 46 High Street Fremantle (Apartments).1 These reasons are concerned with Apartments 14, 15 and 18. Contract for Apartment 14 7 Bucci entered into a contract with Dunross on 24 February 2021 for the purchase of Apartment 14.2 1 Second Petherick Affidavit [5]; First Holleyman Affidavit [3] - [4]; First Bucci Affidavit [4], 'LDB1'. 2 Statement of claim filed on 23 December 2025 in CIV 2520 of 2025 (SOC) [13]; First Petherick Affidavit [8], 'LP5'; First Bucci Affidavit [7], 'LDB3'. Both the First Petherick Affidavit and First Bucci Affidavit incorrectly depose 24 March 2021 as the date of the contract for Apartment 14, the correct date is 24 February 2021. -- 5 of 17 -- [2026] WASC 201 ACTING MASTER GRIFFIN Page 6 8 Relevantly, the contract for Apartment 14 includes:3 (a) that it is for the purchase of 'proposed strata lot (designated A14) and part of 36 - 48 High Street, Fremantle, Lot 19 on Plan 38156'; (b) a deposit of $100 was paid on a purchase price of $380,000; and (c) under the heading 'special conditions' that: Settlement to be effected as soon as the building & strata lots are approved for occupancy[.] Chattels include: wall hung refectory table[;] occasional table & 2 x chairs[;] bed base[;] kitchen as viewed[;] air conditioner. Contracts for Apartments 15 and 18 9 See You Later entered into two contracts with Dunross on 3 March 2021, for the purchase of Apartments 15 and 18.4 10 Relevantly, the contract for Apartment 15 includes:5 (a) that it is for the purchase of 'the property at 36 - 46 High Street, Fremantle, proposed Strata Lot (Designated as apartment 15) part of Lot 109 on Plan 38156'; (b) a deposit of $100 was paid on a purchase of $360,000; and (c) under the heading 'special conditions' that: Settlement to be effected as soon as building is approved for occupancy[.] Strata sold on the margin scheme for GST purposes. 11 Relevantly, the contract for Apartment 18 includes:6 (a) that it is for the purchase of 'the property at 36 - 46 High Street, Fremantle, proposed strata lot (Designated as apartment 18) part of Lot 109 on Plan 38156'; (b) a deposit of $100 was paid on a purchase price of $395,000; and (c) under the heading 'special conditions' that: 3 First Petherick Affidavit [8], 'LP5', page 27; First Bucci Affidavit [7], 'LDB3', page 9. 4 SOC [9]; First Petherick Affidavit [10], 'LP6'; First Holleyman Affidavit [9], 'MJH4'. 5 First Petherick Affidavit [10], 'LP6', page 29; First Holleyman Affidavit [9], 'MJH4', page 8. 6 First Petherick Affidavit [12], 'LP7', page 31; First Holleyman Affidavit [10], 'MJH5', page 10. -- 6 of 17 -- [2026] WASC 201 ACTING MASTER GRIFFIN Page 7 Settlement to be effected as soon as building & strata lots are approved for occupancy[.] Strata lot is sold on the margin scheme for GST purposes. 12 The statement of claim alleges that it was an express term of the contracts for Apartments 14, 15 and 18 (together the Contracts) that Dunross would take all necessary steps to obtain approval for occupation of the building and strata registration, and that settlement would be effected promptly upon such approval being obtained.7 13 The contract for Apartment 18 is made pursuant to the 2002 Joint Form of General Conditions for the Sale.8 The contract for Apartments 14 and 15 is made pursuant to the 2011 Joint Form of General Conditions for the Sale.9 Clause 13 of both general conditions makes the contracts conditional on subdivision and creation of strata title, sets out the seller’s obligation to achieve it, and provides for termination and refund if it does not occur.10 14 The Contracts all refer to 'Lot 109'. In fact, the lot in question is Lot 1091. The contract for Apartment 14 recites the street address as 36 - 48 High Street Fremantle. This is clearly an error and should be 36 - 46 High Street Fremantle. Payment by the plaintiffs 15 The plaintiffs paid part of the purchase prices in the Qoin digital currency to 'wallet addresses' controlled by Mr Gorman, director of Dunross.11 There does not seem to be a dispute that some of the purchase prices were paid in this way. The affidavit evidence about the way in which those funds were managed is difficult to reconcile and is beyond the scope of an enquiry in these applications. 16 In respect of Apartment 14, Bucci paid in Qoin, the equivalent of $280,000, towards the purchase price of $380,000.12 The Third Bucci Affidavit deposes to the various Qoin transfers made by Bucci.13 7 SOC [19]. 8 First Petherick Affidavit [12], 'LP7', page 32; First Holleyman Affidavit [10], 'MJH5', page 11. See also First Williams Affidavit [5], 'MDW-01'; Second Williams Affidavit [5], 'MDW-01'. 9 First Petherick Affidavit [8], [10], 'LP5', 'LP6', pages 28, 30; First Bucci Affidavit [7], 'LDB3', page 10; First Holleyman Affidavit [9], 'MJH4', page 9. See also First Wiliams Affidavit [6], 'MDW-02'. 10 First Williams Affidavit [6], 'MDW-02', pages 24 - 25; Second Williams Affidavit [5], 'MDW-01', pages 13 - 14. 11 See Second Gorman Affidavit [7] - [8], 'SPG-07'; Third Holleyman Affidavit [9] - [15], 'MJH3-B', 'MJH3-C'; Third Bucci Affidavit [8] - [19], 'LDB3-C' - 'LDB3-F'. 12 First Bucci Affidavit [8] - [10]. 13 See Third Bucci Affidavit [8] - [19], 'LDB3-C' - 'LDB3-F'. -- 7 of 17 -- [2026] WASC 201 ACTING MASTER GRIFFIN Page 8 17 In respect of Apartments 15 and 18, it is deposed on behalf of See You Later that the full purchase prices, totalling $755,000, were made in Qoin digital currency to Dunross.14 The dates, sums, and wallet addresses of the various Quion transfers are set out in the Third Holleyman Affidavit.15 18 Mr Gorman deposes that he holds deposits in the Quoin wallets in trust.16 19 Dunross contends that the application for strata titling of the Apartments was withdrawn following receipt of a building report which indicated that substantial work would be required.17 20 Mr Gorman deposes that, on 30 April 2022, he sent notices of termination of the contract to each of the plaintiffs.18 Neither plaintiff accepts that this occurred, and both Mr Holleyman and Mr Bucci have made affidavits on behalf of See You Later and Bucci, respectively, deposing to concerns about the termination letter.19 Suffice to say that they contend that they did not receive such a letter. This conflict of evidence cannot be resolved in these applications. 21 Bucci was de-registered on 21 March 2025.20 22 On 23 April 2025, See You Later lodged caveats against the titles for Lot 1091 and Lot 108.21 The caveat against Lot 1091 is caveat Q396888. It was not before the Court until 13 May 2026. 23 On 16 December 2025, Dunross caused the Registrar of Titles to issue a notice pursuant to s 138B of the TLA, notifying See You Later that its lodged caveat Q396888 would lapse on 6 January 2026.22 24 The plaintiffs commenced proceedings against Dunross seeking, amongst other things, specific performance of the Contracts, by writ issued on 23 December 2025. 14 Second Holleyman Affidavit [15]. 15 Third Holleyman Affidavit [9] - [15], [26] - [29], 'MJH3-B', 'MJH3-C'. 16 Second Gorman Affidavit [20]. 17 Second Gorman Affidavit [16], 'SPG-10'. 18 Second Gorman Affidavit [17] - [18], 'SPG-11', 'SPG-12'. 19 Third Holleyman Affidavit [16] - [25], 'MJH3-D', 'MJH3-E'; Third Bucci Affidavit [20] - [29], 'LDB3-G', 'LDB3-H'. 20 First Shackleton Affidavit – ASIC Searches [4], 'WS-02', page 7. 21 See First Petherick Affidavit [3], 'LP2', page 21. 22 First Petherick Affidavit [5], 'LP4', page 25. -- 8 of 17 -- [2026] WASC 201 ACTING MASTER GRIFFIN Page 9 25 On 29 December 2025, See You Later filed a chamber summons seeking an extension of caveat Q396888 pursuant to s 138B(2)(a) of the TLA. No certificate of urgency was filed. The chamber summons was not listed for a first return date until after the caveat had lapsed. See You Later was granted leave to amend its application to seek leave to lodge a further caveat, pursuant to s 138D of the TLA. 26 By 21 January 2026, Bucci had been re-registered.23 By s 601AH(5) of the Corporations Act 2001 (Cth), it is taken to have been in existence as if it had never been de-registered. 27 On 1 April 2026, Bucci lodged caveat Q816021 against Lot 1091. That caveat was not before the Court, until the Second Bucci Affidavit was filed on 14 May 2026. The estate and interest claimed is of 'Equitable interest as Purchaser of the Fee Simple'. The caveat is an absolute caveat.24 28 On 10 April 2026, Landgate issued a notice that caveat Q816021 would lapse on 1 May 2026.25 29 On 16 April 2026, Dunross accepted an offer to buy both Lot 108 and Lot 1091 for a considerable sum of money.26 It is a condition of that offer that caveat Q816021 (the only one that is currently in force) be removed.27 30 On 21 April 2026, Bucci issued an originating summons to extend the operation of caveat Q816021. 31 See You Later seeks to file a further caveat to protect an equitable interest as a purchaser of the fee simple, as a purchaser under a contract of sale.28 32 Both Mr Holleyman and Mr Bucci have deposed that they are prepared to provide undertakings on behalf of the plaintiffs, and personally, in the usual form. They have filed affidavits deposing to their ability to satisfy any such undertaking.29 23 See Second Petherick Affidavit [3], 'LP1', page 5. 24 First Bucci Affidavit [5]; Second Bucci Affidavit [6], 'LDB2-B'. 25 First Bucci Affidavit [6], 'LDB2'. 26 First Gorman Affidavit [9], 'SPG-05'. 27 First Gorman Affidavit [9], 'SPG-05', page 21. 28 Second Holleyman Affidavit [6] - [7], 'MJH-A', 'MJH-B'. 29 See Second Holleyman Affidavit [9] - [10]; [18] - [21], 'MJH-C', 'MJH-D'; Third Holleyman Affidavit [31] - [33], 'MJH3-F', 'MJH3-G'; Second Bucci Affidavit [10] - [11], [20] - [23], 'LDB2-E', 'LDB2-F'; Third Bucci Affidavit [33] - [34], 'LDB3-I', 'LDB3-J'. -- 9 of 17 -- [2026] WASC 201 ACTING MASTER GRIFFIN Page 10 Relevant sections of the Transfer of Land Act 1893 (WA) 33 The TLA relevantly provides: 138C. Supreme Court's powers on application by caveator (1) A caveator who is served with a notice under section 138B(1) may apply to the Supreme Court, in accordance with rules of the court, for an order extending the operation of the caveat. (2) On the hearing of an application under subsection (1), the Supreme Court — (a) if satisfied that the caveator's claim has or may have substance — (i) may make an order extending the operation of the caveat for such period as is specified in the order; or (ii) may make an order extending the operation of the caveat until the further order of the court; or (iii) may make such other orders as it thinks fit concerning the caveat or the land in respect of which the caveat was lodged; and (b) if not satisfied that the caveator's claim has or may have substance, shall dismiss the application; and (c) may make such ancillary orders in relation to the application as it thinks fit. (3) An interim order under this section may be made ex parte unless the court orders otherwise. (4) The applicant shall ensure that the Registrar is served with a copy of each order made by the court on an application under subsection (1). 138D. Restrictions on caveators lodging further s. 138A caveats (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 -- 10 of 17 -- [2026] WASC 201 ACTING MASTER GRIFFIN Page 11 (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 lodgment 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. Applicable legal principles 34 The same principles apply with respect to an application to extend the operation of a caveat pursuant to s 138C of the TLA, or for leave to lodge a fresh caveat pursuant to s 138D of the TLA. 35 The principles applicable to an application to extend a caveat are well settled and were summarised by Beech J in Bashford v Bashford30 and by Edelman J in Bride v Registrar of Titles.31 I do not propose to re-state these principles. 36 There are two questions for determination: (a) first, has the caveator demonstrated that their claim has or may have substance or, as it is sometimes put, has the caveator established that there is a serious question to be tried in respect of the estate or interest in the land claimed? (b) secondly, does the balance of convenience favour the extension of the operation of the caveat? 30 Bashford v Bashford [2008] WASC 138 [42] - [57] and the authorities referred to. 31 Bride v Registrar of Titles [2015] WASC 11 [11] - [16] and the authorities referred to. -- 11 of 17 -- [2026] WASC 201 ACTING MASTER GRIFFIN Page 12 37 An application for leave to lodge a fresh caveat pursuant to s 138D of the TLA should provide a satisfactory explanation as to why the earlier caveat lapsed, and any delay in making the application for leave.32 This is one consideration to be taken into account when weighing the balance of convenience. Consideration 38 I accept the plaintiffs' submission that it is well established that a contract for the sale of land capable of specific performance gives rise to an equitable interest sufficient to support a caveat. I am satisfied that the caveats relate to land which is the subject of the dispute. 39 Dunross submitted that I cannot be satisfied that either of the plaintiffs' claims have, or may have substance pursuant to s 138C(2) of the TLA, because neither of the caveats were before the Court, and 'it is therefore impossible for the Court to be satisfied that the caveator's claim may have substance'.33 It is correct that neither of the caveats were before the Court on 12 May 2026. The affidavits made on 13 May 2026 by the directors of both plaintiffs,34 pursuant to my order of that day, have put the proposed and existing caveats before the Court. Those caveats seek to protect an interest as 'Equitable interest as Purchaser of the Fee Simple'. 40 As noted above, the Contracts are for the purchase of Apartments 14, 15 and 18. They are not contracts for the purchase of the unqualified fee simple, notwithstanding the interest claimed in the caveats. 41 Dunross submits that the plaintiffs have indiscriminately claimed an interest in the caveat as against the whole of the land, the effect of which is that Dunross cannot deal with the land at all.35 I accept that the claimed interest is greater than the interest the subject of the Contracts, and that the existing or proposed caveats prevent Dunross dealing with the land. That is of course the entire purpose of the caveat. 32 Yardley v Favell Gordon (Aust) Pty Ltd & Anor [2005] WASC 212 (Yardley v Favell) [43] (Master Newnes), referring to Professional Services of Australia Pty Ltd v Mila Properties Pty Ltd & Anor [2004] WASC 30; Landlush Pty Ltd v Rutherford [2002] QSC 219; Field v Gaborit [2002] QSC 466. 33 Defendant's outline of submissions filed on 7 May 2026 in CIV 2520 of 2025 (Defendant's First Submissions) [23]. 34 See Second Holleyman Affidavit; Second Bucci Affidavit. 35 Defendant's supplementary outline of submission filed on 21 May 2026 in CIV 2520 of 2025 (Defendant's Supplementary Submissions) [44] - [46]. -- 12 of 17 -- [2026] WASC 201 ACTING MASTER GRIFFIN Page 13 42 There is disagreement between the parties about whether Dunross has complied with an obligation to obtain strata approval for the Apartments, and the consequence of any such failure (if the obligation exists). 43 Based upon the plaintiffs' affidavits, and the statement of claim, I find that the plaintiffs' claim has substance and that there is a serious question to be tried, because: (a) the plaintiffs are purchasers under signed contracts of sale; (b) title has not passed to the plaintiffs under the Contracts despite payment by the plaintiffs, some four years ago; (c) the plaintiffs seek specific performance of the Contracts; and (d) Dunross now seeks to sell the land to a third party. 44 Dunross also submits that See You Later has not provided any satisfactory explanation about why its caveat lapsed.36 There is no statutory requirement that it do so. It was submitted that the application to extend the caveat was filed within time, but due to practical reasons, it could not be heard before the caveat lapsed.37 45 Dunross relied upon the decision of Beech J in Difranco, which in turn cited the decision of Master Newnes in Yardley v Favell.38 In Yardley, the plaintiff had become aware of an issue with the title in 2000, and of the impending sale of the subject property in either November 2004 or late January 2005. Lawyers were instructed and the caveat lodged in mid-February 2005. It later lapsed. Master Newnes did not consider that it showed undue delay on the part of the plaintiff. In the present case, though, the plaintiffs have commenced substantive proceedings to determine the underlying dispute. A delay similar to that in this case was not fatal to the application to lodge a fresh caveat in Yardley and, taking into account all the circumstances, I find that a satisfactory explanation has been made for allowing the caveat to lapse, and that, if it be the submission, there has been no undue delay. 46 The next question is as to the balance of convenience. The plaintiffs submit that if the caveats are not extended/granted then 36 Defendant's First Submissions [25]; Defendant's Supplementary Submissions [53] - [54]. 37 Plaintiffs' First 20 May 2026 Reply Submissions [10] - [11]. 38 Defendant's First Submissions [10]; Difranco v Rattlebay Pty Ltd [2010] WASC 103 [23], referring to Yardley v Favell [43]. -- 13 of 17 -- [2026] WASC 201 ACTING MASTER GRIFFIN Page 14 the claim for specific performance may be frustrated. They say that any prejudice to Dunross can be overcome by the plaintiffs' undertaking as to damages, which they are prepared to provide, and which is in any event required pursuant to the Consolidated Practice Directions (CPD) 4.3.4.39 Such undertakings are in the following terms:40 [See You Later/Bucci/Mr Holleyman/Mr Bucci] undertakes to the court that he will pay to any party restrained or affected by the restraints imposed by this interlocutory injunction, or this interlocutory undertaking to the court, or the caveat as extended by this order (as the case may be) or of interim continuation thereof, such compensation as the court may in its discretion consider in the circumstances to be just, such compensation to be assessed by the court or in accordance with such directions as the court may make and to be paid in such manner as the court may direct. 47 Dunross submitted on 21 May 2026 that there is no evidence that the plaintiffs have assets sufficient to provide a meaningful undertaking as to damages. The basis for this is that neither plaintiff is registered as holding any real property, and at a hearing on 22 January 2026, plaintiffs' counsel referred to the 'impecuniosity' of Bucci.41 48 Neither the TLA nor the CPD require that the party proffering the undertaking provide evidence of their financial capacity to satisfy the undertaking, if called upon. I accept that there are decisions of this Court in which that issue has been considered.42 Plaintiffs' counsel submitted that the plaintiffs' directors were willing and able to provide undertakings as to damages. Accordingly, I ordered that the plaintiffs file and serve affidavits deposing as to their directors' willingness and ability to provide such undertakings.43 Mr Holleyman and Mr Bucci did so in the Second Holleyman Affidavits and Second Bucci Affidavits, respectively. 49 Based upon the Second Holleyman Affidavit and Second Bucci Affidavit, I am satisfied that the plaintiffs and their directors have sufficient assets to provide a substantive undertaking as to damages. 39 Plaintiffs' 29 April 2026 Submissions [26] - [31]; Plaintiffs' First 20 May 2026 Reply Submissions [12] - [15]; Plaintiffs' Second 20 May 2026 Reply Submissions [9] - [10]. 40 Third Holleyman Affidavit [31] - [32], 'MJH3-F', 'MJH3-G'; Third Bucci Affidavit [33] - [34], 'LDB3-I', 'LDB3-J'. 41 ts 2 - 3 (22 January 2026). See also Defendant's First Submissions [55(g)]. 42 See eg Wildgun Nominees Pty Ltd v Land Alliance Pty Ltd [2009] WASC 244; Zorostar Pty Ltd v Arian Investments Pty Ltd [2019] WASC 415. 43 Orders of Acting Master Griffin made on 13 May 2026 in both CIV 2520 of 2025 and CIV 1526 of 2026. -- 14 of 17 -- [2026] WASC 201 ACTING MASTER GRIFFIN Page 15 50 Justice Jenkins observed in Cardinal Constructions,44 that 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 and that this is 'not a proposition of law but simply a general observation as a matter of fact'. What kind of caveat can be lodged or extended? 51 The plaintiffs did not sign a contract to purchase the fee simple. 52 The caveats can only protect any interest the plaintiffs have in the land. The caveat may be lodged as an absolute caveat to protect the plaintiffs' equitable interests as purchasers of proposed strata lots pursuant to a contract of sale. 53 Dunross submits that the plaintiffs' failure to apply to amend their caveats should be fatal to the application by itself.45 In the circumstances, there is a serious question to be tried, and the balance of convenience favours the granting of the applications. Accordingly, the applications will succeed, subject to amendment of the caveat to reflect the claimed interest. 54 The Court has the power to amend a caveat, subject to being satisfied that the caveator's claim has substance.46 As noted above, I am so satisfied. 55 See You Later will be granted leave to lodge a fresh absolute caveat, claiming an equitable interest as the purchaser of strata lots proposed for Apartments 15 and 18 pursuant to contracts of sale. 56 Bucci's caveat Q816021 is to be amended to be an absolute caveat, based upon an equitable interest as the purchaser of a strata lot proposed for Apartment 14 pursuant to a contract of sale. Costs 57 The parties may lodge brief submissions, not longer than five pages, as to costs, within 14 days and the issue of costs will be decided on the papers. 44 Cardinal Constructions Pty Ltd v Ghersinich [2009] WASC 239 [41], referring to Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42; Navarac Pty Ltd v Moondancer Holdings Pty Ltd [2009] WASCA 95. 45 Defendant's Supplementary Submissions [48]. 46 Badah Pty Ltd v One Investment Administration Ltd as trustee for the Alt No 1 Trust [2017] WASC 96 [13] (Le Miere J) and the authorities referred to. -- 15 of 17 -- [2026] WASC 201 ACTING MASTER GRIFFIN Page 16 Orders First plaintiff - CIV 2520/2025 1. Leave is granted for the first plaintiff to lodge a further absolute caveat against Lot 1091 on Deposited Plan 419688 in Certificate of Title Volume 4022 Folio 930 as to its equitable interest as the purchaser of strata lots proposed for apartments 15 and 18 pursuant to a contract of sale. 2. By 2 June 2026, the first plaintiff and its director, Michael John Holleyman, are to file undertakings as to damages that they will: … undertake to the court that they will pay to any party restrained or affected by the restraints imposed by the lodging of a further caveat against Lot 1091 on Deposited Plan 419688 in Certificate of Title Volume 4022 Folio 930, such compensation as the court may in its discretion consider in the circumstances to be just, such compensation to be assessed by the court or in accordance with such directions as the court may make and to be paid in such manner as the court may direct. 3. By 5 June 2026, the parties are to file submissions of not more than five (5) pages as to costs. 4. The costs of the application be determined on the papers. Second plaintiff - CIV 1526/2026 1. Caveat Q816021 is to be amended such that the claimed interest is an equitable interest as the purchaser of a strata lot proposed for apartment 14 pursuant to a contract of sale. 2. For the avoidance of doubt, the operation of caveat Q816021 is extended until further order. 3. By 2 June 2026, the plaintiff and its director, Lloyd Daniel Bucci, are to file undertakings as to damages that they will: … undertake to the court that they will pay to any party restrained or affected by the restraints imposed by the amendment and extension of caveat Q816021, such compensation as the court may in its discretion consider in the circumstances to be just, such compensation to be assessed by the court or in accordance with such directions as the court may make and to be paid in such manner as the court may direct. -- 16 of 17 -- [2026] WASC 201 ACTING MASTER GRIFFIN Page 17 4. By 5 June 2026, the parties are to file submissions of not more than five (5) pages as to costs. 5. The costs of the application be determined on the papers. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. SC Associate to Acting Master Griffin 28 MAY 2026 -- 17 of 17 --