DIACONU -v- SAAD [2026] WASC 150

[2026] WASC 150 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : DIACONU -v- SAAD [2026] WASC 150 CORAM : PALMER J HEARD : 16 APRIL & 24 APRIL 2026 DELIVERED : 24 APRIL 2026 FILE NO/S : CIV 1488 of 2026 BETWEEN : TIBERIU LAURENTIU DIACONU Plaintiff AND NABIL SAID MESLHY SAAD First Defendant REGISTRAR OF TITLES Second Defendant Catchwords: Real property - Application for extension of caveat - Equitable charge created by home building contract - Whether applicant's claim has or may have substance - Balance of convenience Legislation: Building Services (Complaint Resolution and Administration) Act 2011 (WA) Transfer of Land Act 1893 (WA) -- 1 of 13 -- [2026] WASC 150 Page 2 Result: Application dismissed Category: B Representation: Counsel: Plaintiff : Ms J Moore - 16 April 2026 In Person - 24 April 2026 First Defendant : In Person Second Defendant : No appearance Solicitors: Plaintiff : Legal Care Australia - 16 April 2026 In Person - 24 April 2026 First Defendant : In Person Second Defendant : No appearance Case(s) referred to in decision(s): Bashford v Bashford [2008] WASC 138 Bride v The Registrar of Titles [2015] WASC 11 Edwards Industrial Products Pty Ltd v Thwin and Zaw [2025] WASC 48 Eng Mee Yong v Letchumanan s/o Velayutham [1980] AC 331 Gangemi v Gangemi [2009] WASC 195 Lee v Mavaddat [2007] WASC 18 Leros Pty Ltd v Terara Pty Ltd [1992] HCA 22; (1992) 174 CLR 407 Lydon v Ryding [2002] WASC 308 Midland Brick Company Pty Ltd v Welsh [2006] WASC 122 Palazza Homes Pty Ltd v Goh [2010] WASC 407 Pisano v South Metropolitan Health Service [2023] WASCA 80 Powell v In De Braekt [2006] WASC 264 -- 2 of 13 -- [2026] WASC 150 PALMER J Page 3 PALMER J: Introduction 1 The plaintiff has applied to extend the operation of caveat Q793926 (the Caveat) registered against 220A Lawrence Street, Bedford, being Lot 2 on Strata Plan 84893 on Certificate of Title Volume 4017 Folio 867 (the Land) pursuant to s 138C of the Transfer of Land Act 1893 (WA) (Transfer of Land Act). 2 The first defendant is the registered proprietor of the Land. 3 The plaintiff is a builder. He claims that on 6 November 2023 he and the first defendant entered into a home building contract (the Contract) pursuant to which he agreed to construct a house for the first defendant on the Land. 4 The plaintiff says that by 1 September 2025 the work on the house had reached practical completion and he invoiced the first defendant $45,000.00 for a progress payment due at that stage. The plaintiff says that that amount remains unpaid. 5 The plaintiff says that the Contract included terms that charge the Land for the due payment of all money that may become payable and by which the first defendant consents to the plaintiff lodging a caveat to secure his interests. The plaintiff says that he instructed his solicitor to lodge a caveat against the Land pursuant to these terms. 6 The plaintiff says that he subsequently received a notice from the second defendant indicating that an application had been made under s 138B of the Transfer of Land Act, and that the Caveat would lapse on 17 April 2026 if he did not make the present application. 7 The application was listed before me on an urgent basis on 16 April 2026 but adjourned until 24 April 2026, at the plaintiff's request, to permit the plaintiff to file further evidence. 8 On 24 April 2026, I refused to extend the Caveat and I said that I would publish my reasons for doing so. These are those reasons. When a caveat will be extended or an injunction granted 9 Pursuant to s 137 of the Transfer of Land Act, a person claiming any estate or interest in land under the operation of the Transfer of Land -- 3 of 13 -- [2026] WASC 150 PALMER J Page 4 Act may lodge a caveat with the Registrar. The purpose of a caveat against dealings is to operate as an injunction to the Registrar to prevent registration of dealings forbidden by the caveat until notice is given to the caveator so that he or she has an opportunity to oppose such registration.1 10 Section 138C(2) of the Transfer of Land Act provides for the Supreme Court's powers when a caveator applies to this court for an order extending the operation of a caveat. 11 The terms of s 138C of the Transfer of Land Act are as follows: (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). 1 Leros Pty Ltd v Terara Pty Ltd [1992] HCA 22; (1992) 174 CLR 407, 419. -- 4 of 13 -- [2026] WASC 150 PALMER J Page 5 12 The principles applicable to an application to extend a caveat are well settled and were summarised in Bashford v Bashford,2 and in Bride v Registrar of Titles,3 and are well known. I do not propose to restate those principles other than to say that two questions arise 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? 13 The two questions are interrelated. The court must balance the injustice that might be suffered by the proprietor if the caveat were to remain against the injustice that might be suffered by the caveator if the caveat is removed. 14 As is usual in matters of this kind, the application proceeded on the basis of affidavit evidence without cross examination. In these circumstances, it is not appropriate to resolve conflicts of evidence on affidavit.4 Any disputed questions of fact should be left for resolution in a fresh action commenced by writ of summons to substantiate the claimed interest. 15 A caveatable interest must exist at the time a caveat is lodged and cannot be lodged to protect a future interest,5 nor must it go beyond the legitimate claim necessary to protect the rights of the caveator.6 16 In dealing with an application to remove a caveat, it is now generally accepted that the power to make such order as the court considers appropriate or as the court deems fit in dealing with an application to remove a caveat, but it includes the power to order the amendment of a caveat as a condition of its retention. That said, the preponderance of authority in Australia is that this power does not empower the court to order an amendment of a caveat which would 2 Bashford v Bashford [2008] WASC 138 [42] - [57] (Bashford). 3 Bride v The Registrar of Titles [2015] WASC 11 [11] - [16]. 4 Bashford [48]. 5 Gangemi v Gangemi [2009] WASC 195 [38] - [45]. 6 Midland Brick Company Pty Ltd v Welsh [2006] WASC 122 [342]. -- 5 of 13 -- [2026] WASC 150 PALMER J Page 6 result in the substitution of a different estate or interest than the estate or interest claimed in the caveat.7 17 The court has power, in the context of an application to extend a caveat, to decline to extend the operation of the caveat but to impose an injunction maintaining the status quo between the parties.8 Why the plaintiff argues the caveat should be maintained 18 The plaintiff's application is supported by two affidavits deposing to the facts upon which his claim is based. 19 A copy of the Contract is attached to the plaintiff's first affidavit. The Contract appears to be a standard form home building works contract prepared by the Master Builders Association. 20 The Contract is between the plaintiff and the first defendant, and appears to have been signed on 6 November 2023. It relates to the construction of a house on the Land. 21 The Contract provides that the total cost of the works to be performed would be $450,000.00 to be paid in stages, with the payment due on practical completion being 15% or $68,000.00. 22 Clause 31 of the Contract deals with disputes and provides as follows: 31. SETTLEMENT OF DISPUTES If a dispute or difference arises between the Parties in connection with the contract then: (a) Either Party may give written notice to the other of the existence of the dispute or difference. (b) Notice must provide sufficient detail to identify the cause and nature of the dispute or difference and call on the other Party to rectify the matters complained of or otherwise attempt to settle them. (c) At the end of 5 Working Days after notice, the dispute or difference, unless it has been settled, may be submitted for resolution by one of the following procedures: 7 Palazza Homes Pty Ltd v Goh [2010] WASC 407 [9] - [11]. 8 Bashford [52], Lydon v Ryding [2002] WASC 308 [22]; Lee v Mavaddat [2007] WASC 18 [37]; Powell v In De Braekt [2006] WASC 264 [10]. -- 6 of 13 -- [2026] WASC 150 PALMER J Page 7 (i) by reference to the Building Commissioner under the provisions of the Building Services (Complaint Resolution and Administration) Act 2011, or (ii) by reference to arbitration under the Commercial Arbitration Act 2012. The arbitrator will be agreed by the Parties or, if they fail to agree on a choice within 5 Working Days of it being requested, then the arbitrator will be the current Master Builders' President, or the President's nominee. In seeking the nomination, the Party who served notice under paragraph (a) must deposit $500 with Master Builders as security for the. arbitrator's costs. The security will be applied according to the arbitrator's directions. (d) In the event of a payment dispute, as defined by the Construction Contracts Act 2004, if either Party makes an application for adjudication, the Parties agree that the adjudicator will be appointed by Master Builders. In seeking the appointment, the Party making the application for adjudication must deposit $500 with Master Builders as security for the adjudicator's costs. The security will be applied according to the adjudicator's directions. 23 Clause 33 of the Contract addresses security and provides as follows: 33. SECURITY The Owner: (a) Charges the land on which the Works are to be erected with due payment to the Builder of all money that may become payable to the Builder under the contract or otherwise in carrying out the Works. (b) Irrevocably authorises the Builder to lodge, and consents to the Builder lodging, an absolute caveat over the land to secure the Builder's interests under the contract. 24 The plaintiff deposes to the progress of the work and that by 1 September 2025 the work on the house had reached practical completion, at which point he invoiced the first defendant $45,000.00 -- 7 of 13 -- [2026] WASC 150 PALMER J Page 8 for a progress payment then due. He does not explain why this amount differed from the amount provided for in the Contract. Given that the amount invoiced is less than the amount in the Contract, nothing turns on this. 25 The plaintiff says that on 3 September 2025, he handed the final invoice to the first defendant personally and he saw him scan and sign the final invoice on his phone. He says the first defendant then showed him his phone and he saw an email he sent to someone with words to the effect 'please pay'. 26 The plaintiff deposes that on or about 18 September 2025, he served the first defendant with a notice of intention terminating the Contract on the basis that the first defendant had unlawfully taken possession of the Land without paying the unpaid balance of the Contract. 27 The plaintiff says that on or about 10 February 2026, he terminated the Contract by serving the first defendant with the formal termination of the contract notice. 28 The plaintiff deposes that in early March 2026, he drove past the Land and there was a 'For Sale' sign marked 'Under offer' in front of the house. 29 The plaintiff says that on 12 March 2026, he instructed his lawyer to lodge the Caveat. The plaintiff attached a copy of the Caveat to his affidavit. In the part of the Caveat titled 'estate and interest being claimed' the Caveat states: Interest as a person who is to receive portion of the proceeds of land upon sale. 30 Immediately below that part of the Caveat, the following appears: Grounds of claim Claim statement Agreement with the following Parties and Date Parties NABIL SAID MESLHY SAAD Tiberiu Laurentiu DIACONU Date 6 November 2023 -- 8 of 13 -- [2026] WASC 150 PALMER J Page 9 31 The plaintiff deposes that after he lodged the Caveat, he became aware that the description of the interest selected in the Caveat did not describe the interest claimed as an equitable charge arising under the Contract. He said that he then instructed his lawyer to lodge a further caveat that correctly reflected the nature of his interest. He said that this is currently awaiting examination at Landgate. 32 The plaintiff deposes that on 19 March 2026, he lodged a complaint form with the Building Commissioner under s 5(1) and (2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA). 33 The plaintiff says that on 27 March 2026, he received a notice from the second defendant informing him of an application made under s 138B of the Transfer of Land Act. 34 The plaintiff deposes that the first defendant told him that he considered that he was entitled to withhold payment unless the plaintiff provides a BA7 (Notice of Completion). The plaintiff says that he has now lodged that notice with the City of Bayswater. 35 The plaintiff says that the first defendant has asserted that he has overpaid him and that the plaintiff breached the Contract. He also says that the first defendant has written to him advising that he disputes that the plaintiff had the interest claimed in the Caveat and claiming that the Caveat caused a potential purchaser to withdraw from a purchase. 36 In the second affidavit that the plaintiff filed, he deposed to entering into another construction contract with the first defendant to construct another home in Inglewood. 37 The plaintiff said that that contract was a 'costs plus' contract (pursuant to which the plaintiff would be entitled to the reimbursement of his costs plus a builders fee). 38 The plaintiff deposed to performing work under this other contract and the first defendant reimbursing him for that work. He said that $12,609.82 remains outstanding under that contract. Why the first defendant says the caveat should be discharged 39 The first defendant filed two affidavits disputing the plaintiff's entitlement to maintain the Caveat. -- 9 of 13 -- [2026] WASC 150 PALMER J Page 10 40 In his first affidavit, the first defendant denied that the Contract granted the plaintiff any legal or equitable interest or entitled the plaintiff to any portion of the proceedings of the sale. 41 The first defendant deposed to having paid the plaintiff $465,000.00 for the work performed under the Contract and said that nothing more was owing. He referred to certain payments that were made and he disputed whether any further money was owing. 42 The first defendant said that cl 33 of the Contract had no application as there was no money due and payable. 43 The first defendant said that he had lodged a complaint with the Building Commissioner claiming that the builder had been overpaid and seeking compensation for the delayed completion of the building work and building defects. He referred to correspondence that he had sent to the builder outlining his complaints. He said that the Building Commissioner had inspected the work and confirmed it was defective. 44 The first defendant said that he terminated the Contract. He also says that he attempted to sell the property but the presence of the Caveat resulted in the purchaser withdrawing from the purchase. 45 The first defendant's second affidavit canvassed similar ground but notably attached a spreadsheet he said that he was provided with by the plaintiff. Significantly, a part of the spreadsheet seemed to confirm the first defendant's claims that he had paid the plaintiff $465,000.00. Has the plaintiff established there is a serious question to be tried? 46 In my view, the plaintiff has failed to establish a serious question to be tried. 47 I accept that cl 33 of the Contract might entitle the plaintiff to an equitable charge to secure money due and payable under the Contract. 48 The law relating to the creation of an equitable charge was explained by Lundberg J in Edwards Industrial Products Pty Ltd v Thwin and Zaw.9 It is not necessary to repeat everything here that was said there but I gratefully agree with and adopt his Honour's reasoning. It is useful, however, to note that in that case Lundberg J said the following about the creation of equitable charges: 9 Edwards Industrial Products Pty Ltd v Thwin and Zaw [2025] WASC 48 [36] - [47]. -- 10 of 13 -- [2026] WASC 150 PALMER J Page 11 The requirements to establish an equitable charge were restated by Derham AsJ in Morris Finance Ltd v Commonwealth Bank of Australia, and were not in dispute between the parties. By reference to established authority, his Honour set out the requirements as follows: [32] The requirements for the creation of an equitable charge are: (a) an intention to create a charge; (b) if over land, the presence of writing; (c) the existence of definite ascertainable property, including future property, over which it is contemplated that the charge will exist; (d) and where consideration is necessary, consideration. 49 In this case, it is arguable that the Contract reveals an express intention to create a charge. The charge is in writing. The property (the Land) is ascertainable, and the plaintiff gave consideration for the charge by performing the works under the Contract. 50 As the plaintiff lodged the Caveat after he had purported to terminate the Contract, it is necessary to consider whether the rights conferred on the plaintiff by cl 33 survived termination. The answer to this question may turn on the proper construction of the Contract. 51 Although I do not consider it appropriate to reach a final view about how the Contract should be construed, consideration of whether the plaintiff has established a serious question to be tried requires a preliminary assessment of whether it is arguable that the rights conferred by cl 33 survived termination. In my view, there is a good argument that they did. 52 Even if cl 33 does charge the Land, the charge only extends to money due and payable under the Contract. 53 The Contract price was $450,000.00. 54 The first defendant has given evidence that he has paid the plaintiff $465,000.00. That claim is supported by one of the plaintiff's own contemporaneous spreadsheets. 55 If as the first defendant says he has already overpaid the plaintiff, there is no further money due and payable under the Contract to be secured by the charge. -- 11 of 13 -- [2026] WASC 150 PALMER J Page 12 56 It is true that the plaintiff gave evidence in his first affidavit that $45,000.00 was outstanding. The affidavit did not, however, provide a full and proper accounting of the payments that the plaintiff has received from the first defendant, or produce contemporaneous accounting records or receipts to support his position. 57 Although the plaintiff was given an adjournment to file further evidence, his second affidavit also failed to give a full and proper accounting of the payments that the plaintiff has received from the first defendant. It also failed to produce contemporaneous accounting records or receipts to support his position and made no mention of the spreadsheet. 58 While the first defendant's second affidavit was filed after the plaintiff filed his second affidavit, given that the spreadsheet was the plaintiff's own document, it would have been open to the plaintiff to have addressed that document when he prepared his second affidavit. Indeed, it might have been expected that he would have done so. 59 Given the first defendant's sworn evidence that he has overpaid the plaintiff, I consider that the plaintiff's failure to provide a full and proper accounting of the payments that the plaintiff has received from the first defendant, or to produce and explain his contemporaneous accounting records and receipts, significantly reduces the weight to be attached to his evidence. 60 In general, it is not appropriate for the court to attempt to resolve conflicts of affidavit evidence on an interlocutory application. Typically, on an interlocutory application the question of whether there is 'a serious question to be tried', is answered on the basis that the statements of fact contained in the affidavits on the application are accepted as true. 61 It does not follow, however, that I am bound to uncritically accept the plaintiff's evidence establishes there is a serious question to be tried that he is yet to be paid. In Eng Mee Yong v Letchumanan s/o Velayutham, Lord Diplock observed:10 Although in the normal way it is not appropriate for a judge to attempt to resolve conflicts of evidence on affidavit, this does not mean that he is bound to accept uncritically, as raising a dispute of fact which calls for further investigation, every statement on affidavit however 10 Eng Mee Yong v Letchumanan s/o Velayutham [1980] AC 331 (341). See Pisano v South Metropolitan Health Service [2023] WASCA 80 [52(5)]. -- 12 of 13 -- [2026] WASC 150 PALMER J Page 13 equivocal, lacking in precision, inconsistent with undisputed contemporaneous documents or other statements by the same deponent, or inherently improbable in itself it may be. 62 In this case, I consider that the plaintiff's evidence is vague. Although he was given an opportunity to do so, he has failed to provide a full and proper accounting of the payments that he received and to produce his contemporaneous accounting records or receipts to support his position. His evidence appears to be contradicted by his own spreadsheet that he provided to the first defendant. 63 In these circumstances, I do not consider the plaintiff's evidence to be sufficient to establish that there is a serious question to be tried that money remains due and payable under the Contract. Whether the balance of convenience favours the extension of the caveat 64 I also do not consider that the balance of convenience favours the extension of the Caveat. This is for two reasons. 65 First, the evidence suggests that the first defendant is in the process of selling the Land. It is likely that the presence of the Caveat may make it harder for the first defendant to sell the Land. The evidence before me suggests that one sale has already fallen through. 66 Secondly, it might be expected that the Caveat would remain in place until the proceedings before the Building Commissioner and any appeals have been determined. While there is no evidence before me regarding how long this would take, it might be anticipated that it would take some time. Conclusion 67 For these reasons I will dismiss the application. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. CN Associate to the Honourable Justice Palmer 24 APRIL 2026 -- 13 of 13 --