LANE -v- BRIGGS [2026] WASC 345

[2026] WASC 345 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : LANE -v- BRIGGS [2026] WASC 345 CORAM : STRK J HEARD : 14 AUGUST 2026 ADDITIONAL PAPERS FILED ON 17 & 18 AUGUST 2026 DELIVERED : 19 AUGUST 2026 FILE NO/S : CIV 1991 of 2026 MATTER : IN THE MATTER OF THE TRANSFER OF LAND ACT 1893 (WA) s 138C BETWEEN : BREANNA LANE Plaintiff AND ALAN CHARLES BRIGGS First Defendant WENDY SUSAN BRIGGS Second Defendant REGISTRAR OF TITLES Third Defendant Catchwords: Real Property - Caveat - Extension of caveat - Serious question to be tried - Trusts - Constructive trust - Joint endeavour - Common intention - Balance of convenience - Turns on own facts -- 1 of 53 -- [2026] WASC 345 Page 2 Legislation: Transfer of Land Act 1893 (WA) s 138C Result: Caveat to be removed; proceeds of sale to be paid into court Category: B Representation: Counsel: Plaintiff : In person First Defendant : T Coyle Second Defendant : T Coyle Third Defendant : No appearance Solicitors: Plaintiff : In person First Defendant : Peter May McAuliffe Legal Second Defendant : Peter May McAuliffe Legal Third Defendant : No appearance -- 2 of 53 -- [2026] WASC 345 Page 3 Case(s) referred to in decision(s): Allen v Snyder [1977] 2 NSWLR 685 Austin v Hornby [2011] NSWSC 1059 Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 Barrett v King [2024] WASCA 169 Bashford v Bashford [2008] WASC 138 Baumgartner v Baumgartner (1985) 2 NSWLR 406 Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137 Brogue Tableau Pty Ltd v Binningup Nominees Pty Ltd [2007] WASCA 179; (2007) 35 WAR 27 Currie v Currie [No 2] [2019] WASCA 2 Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42 Gangemi v Gangemi [2009] WASC 195 Gissing v Gissing [1971] AC 886 Giumelli v Giumelli (1999) 196 CLR 101 Green v Green (1989) 17 NSWLR 343 Hong Kong International Credit Ltd v Registrar of Titles [2012] WASC 17 J and H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546 Kalx Capital Securities Pty Ltd v Richardson 1 Pty Ltd [No 2] [2021] WASC 302 KWS Capital Pty Ltd v Love [2013] WASC 294 Leros Pty Ltd v Terara Pty Ltd [1992] HCA 22; (1992) 174 CLR 407 Magnolia Private Capital Pty Ltd v Floate [2022] WASC 131 Marchese v Marchese [2021] WASC 385 Martin v Official Trustee in Bankruptcy [1990] Tas R 65 Midland Brick Company Pty Ltd v Welsh [2006] WASC 122 Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583 Perron Investments Pty Ltd v Tim Davies Landscaping Pty Ltd [2009] WASCA 171 Pettitt v Pettitt [1970] AC 777 Porter v McDonald [1984] WAR 271 Shepherd v Doolan [2005] NSWSC 42 Simmons v Love [2014] WASC 116 Trajkoski v The State of Western Australia [2017] WASC 273 West v Mead [2003] NSWSC 161 Wichniewicz v Registrar of Titles [2014] WASC 18 Zekry v Zekry [2020] VSCA 336 Zorostar Pty Ltd v Arian Investments Pty Ltd [2019] WASC 415 -- 3 of 53 -- [2026] WASC 345 STRK J Page 4 STRK J: Introduction 1 On 23 July 2026 the plaintiff, Breanna Sarah Lane, filed an originating summons seeking relief pursuant to s 138C(1) of the Transfer of Land Act 1893 (WA) for an order to extend the operation of Caveat Q832977 (the Caveat) registered against the property known as 36 Servetus Street, Swanbourne, more particularly described as Lot 1 on Diagram 6873, being the whole of the land described in Certificate of Title Volume 1850 Folio 908 (the Swanbourne Property). 2 Alan Charles Briggs and Wendy Susan Briggs are the registered proprietors of the Swanbourne Property and Ms Lane's parents. They were named the first and second defendants, respectively. The Registrar of Titles was named as the third defendant. 3 The Caveat is recorded on the certificate of title to the Swanbourne Property as having been lodged by Ms Lane on 15 April 2026 and forbids the registration of any transfer or dealing absolutely.1 As is explained in more detail below, a contract for the sale of the Swanbourne Property was executed by Mr and Mrs Briggs on 24 April 2026, and settlement is due to take place on or before 31 August 2026. 4 The application was listed for hearing on 29 July 2026. Ms Lane is not represented in the action. In the course of the hearing, it became apparent that while various documents had been served on the solicitors for Mr and Mrs Briggs, Ms Lane had inadvertently not served the notice of hearing of the application and there was no appearance at the hearing by the solicitors for the first and second defendants. The hearing of the application was adjourned to 30 July 2026 to allow notice of the hearing to be given. 5 On 30 July 2026 an appearance was filed on behalf of Mr and Mrs Briggs. The Registrar of Titles was served but elected to take no part at the hearing of the application. 6 On 30 July 2026, without substantively hearing the application, the operation of the Caveat was extended without opposition on an interim basis until further order of this court. Mediation orders were made, and programming orders were also made for the substantive hearing of the application should the parties not reach agreement through mediation. 1 Affidavit of BS Lane sworn on 23 July 2026, BSL-1, BSL-3. -- 4 of 53 -- [2026] WASC 345 STRK J Page 5 7 Unfortunately, the parties were unable to reach agreement at mediation and the application to extend the operation of the Caveat was heard on 14 August 2026. The hearing was adjourned part heard, and further programming orders were made for the filing of additional papers on 17 and 18 August 2026.2 All additional evidence and submissions have now been filed. 8 After hearing Ms Lane in person and counsel for Mr and Mrs Briggs, and after giving careful consideration to the written submissions and affidavits read, I found that the Caveat ought be removed subject to the net proceeds of sale being paid into court, on the basis that the transfer will not defeat, extinguish or destroy any interest Ms Lane may have in respect to contributions made to the purchase, maintenance or improvement of the Swanbourne Property, the net proceeds of sale, or otherwise; and that Ms Lane must promptly commence substantive proceedings. 9 My reasons are set out below. The evidence 10 In support of the urgent relief sought, Ms Lane read the affidavit sworn by her on 23 July 2026 which was filed on 24 July 2026; and the affidavit sworn by her on 11 August 2026 which was filed on the same day. 11 Pursuant to the orders made on 14 August 2026, Ms Lane on 18 August 2026 swore and filed a further affidavit. 12 Ms Lane also relied upon the certificate of urgency filed on 24 July 2026; a memorandum of conferral pursuant to Order 59 r 9 of the Rules of the Supreme Court 1971 (WA) filed on 27 July 2026; a signed undertaking as to damages filed on 27 July 2026; an outline of submissions filed on 28 July 2026; a further outline of submissions filed on 11 August 2026; a minute of proposed orders filed on 18 August 2026; and supplementary responsive submissions filed on 18 August 2026. Ms Lane disclosed that her submissions filed on 11 and 15 August 2026 were prepared with the assistance of generative AI technology, and that she had reviewed and verified the same. Ms Lane also recorded that she accepted responsibility for the accuracy, content and omissions, referencing the court's Consolidated Practice Direction 9.21. 2 Orders 1 and 2 of the orders made on 14 August 2026. -- 5 of 53 -- [2026] WASC 345 STRK J Page 6 13 In opposition to the application, Mr and Mrs Briggs read the affidavit sworn by Mr Briggs on 12 August 2026 and filed on the same day; the affidavit sworn by Mrs Briggs on 12 August 2026 and filed on the same day; and the affidavit of Clinton Stuart Brooker sworn on 29 July 2026 and filed on 13 August 2026 (Mr Brooker and his wife Jennifer Anne Brooker are the purchasers of the Swanbourne Property, pursuant to the contract for sale executed by Mr and Mrs Briggs on 24 April 2026). 14 Pursuant to the orders made on 14 August 2026, Mr Briggs on 17 August 2026 swore and filed an affidavit concerning the mortgage registered against the Swanbourne Property and the indebtedness it secures. 15 Counsel for Mr and Mrs Briggs also relied upon the outline of submissions filed on 12 August 2026; a minute of proposed orders filed on 12 August 2026; the amended minute of proposed orders filed on 17 August 2026; and the affidavit sworn by Mr Briggs on 17 August 2026 and filed on the same day. Ms Lane's evidence 16 Ms Lane relied upon the affidavit she made to show cause why the caveat should not be removed. The following is intended to be a summary and not a complete account of the matters deposed to by Ms Lane. I made no findings of fact with respect to the same. Ms Lane's first affidavit 17 Ms Lane attached to her first affidavit a copy of the Caveat dated 15 April 2026,3 and the statutory declaration she made in support of the same on 15 April 2026.4 When lodged, the Caveat recorded that the estate or interest being claimed by Ms Lane was an '[e]quitable interest in fee simple':5 On the basis of constructive trust arising from the facts deposed to in the statutory declaration of Breanna Sarah Lane filed herewith. 18 In response to a requisition issued by Landgate on 27 May 2026, Ms Lane made a second statutory declaration on 8 June 2026.6 In that document she declared that she had since amended the Caveat to amend 3 Affidavit of BS Lane sworn on 23 July 2026, BSL-1. 4 Affidavit of BS Lane sworn on 23 July 2026, BSL-2. 5 Affidavit of BS Lane sworn on 23 July 2026, BSL-1. 6 Affidavit of BS Lane sworn on 23 July 2026, BSL-5. -- 6 of 53 -- [2026] WASC 345 STRK J Page 7 the estate and interest being claimed panel of that document to now read: 'an equitable interest as beneficial owner'. 19 In her first affidavit Ms Lane explained that she claims an entitlement to the Swanbourne Property as a beneficiary of a constructive trust. Which arose in circumstances described in the statutory declaration she made in support of the Caveat. The key facts as were declared by Ms Lane on 15 April 2026 were as follows (again, which are reproduced here for the purposes of outlining the context in which Ms Lane's application was made, and did not give rise to any findings of fact):7 (a) Between late 2011 and late 2014, Ms Lane and her family rented a property in Claremont, Western Australia (the Claremont Property). (b) In late 2014 their lease was coming to an end and Ms Lane needed to find another property for her and her family to live. (c) In early October 2014 Ms Lane spent the weekend with her parents at their home in Yallingup at which time: (i) Ms Lane told her father what had happened with the end of the lease at the Claremont Property (that she and her family then rented) and how she needed to find a new home. She says that she and her father discussed how she needed to move fast; (ii) there was some discussion about Ms Lane and her husband Ben buying a property in their names and Mr Briggs acting as guarantor, but Mr Briggs said that he did not want to act as guarantor; (iii) Ms Lane said that if nothing could be found soon, then she and Ben would need an urgent rental property; (iv) instead, Mr Briggs said that he would help Ms Lane and Ben find a property and that he would arrange it for them; (v) Ms Lane reminded Mr Briggs that she had only started a new job a few months ago and would not be able to get a loan in her own name; 7 Affidavit of BS Lane sworn on 23 July 2026, BSL-2. -- 7 of 53 -- [2026] WASC 345 STRK J Page 8 (vi) Mr Briggs said that he would arrange ownership of a new property in his own name, but Ms Lane would make payments to him to cover the mortgage; (vii) Mr Briggs said that he would pay the rates and taxes for the property; (viii) what Ms Lane and Ben could afford by way of repayments was discussed in detail, which was used to calculate the price of the property that was going to be purchased; (ix) discussed were figures around $1 million for the price of the property and Ms Lane calculated that around 5% interest on a $1 million loan would mean repayments of around $1,000 a week, which was around the same amount that she paid in rent for the Claremont Property, and she recorded that she could afford this; (x) Mr Briggs said that if they did it this way, then one day Ms Lane and Ben would own their own home and that doing it this way was how they would get back on the property ladder; (xi) Mr Briggs said that the property would be theirs in the future; and (xii) Mr Briggs said that getting a property this way was the only way to stop renting and to give stability to Ms Lane's kids. (d) Ms Lane subsequently searched for and then negotiated the terms of purchase of the Swanbourne Property. The purchase price was $1.1 million. Ms Lane and her family moved into the Swanbourne Property a few weeks after settlement (which occurred in mid-November 2014). (e) As from December 2014, Ms Lane made regular payments from her Westpac bank account into Mr Briggs' bank account. (f) After settlement of the sale of the Swanbourne Property in December 2014, Ms Lane made regular payments to Mr Briggs of approximately $1,000 per week. -- 8 of 53 -- [2026] WASC 345 STRK J Page 9 (g) From late 2014 Ms Lane assumed or expected that after Mr Briggs had purchased the new property and she began making the payments to him that would cover the mortgage, the property would become hers. (h) Ms Lane's expectation or assumption was brought about by the partly express and partly implied representations made by Mr Briggs to her to that affect. Alternatively, Mr Briggs knew that she was relying on that assumption, and he acquiesced in her so doing. (i) The payments were made monthly in the amount of $4,300, being around the same amount that Mr Briggs and Ms Lane agreed on at their meeting in October 2014 at Mr Briggs' property in Yallingup. (j) Ms Lane calculated that between December 2014 and August 2020, she made 69 monthly payments of $4,300 to Mr Briggs. The total of those payments was $296,700. (k) In April 2020, to keep up with her payments, Ms Lane applied for and obtained an early release of $10,000 of her superannuation through the Federal Governments COVID-19 application program. (l) Between September 2020 and April 2026, Ms Lane continued to make monthly payments to Mr Briggs. The payments were identified with the description 'mortgage' in the narration line of the bank statements. (m) Ms Lane calculated that she made 67 monthly payments to Mr Briggs during this period. The total of those payments was $253,462 (Ms Lane having identified that she had missed three payments, in April 2023, September 2025 and January 2026). (n) Ms Lane noted that there was a change in the amount of some payments. That is because her employment status changed in July 2025 and there was a reduction in her income. (o) Ms Lane calculated that the total of payments made by her to Mr Briggs was $550,162. (p) Ms Lane paid for capital works in respect of the Swanbourne Property between 2015 and 2022 in the amount of $19,080.92, -- 9 of 53 -- [2026] WASC 345 STRK J Page 10 which included the installation of a JetMaster fireplace, electrical works, installation of air conditioning units, home security, hot water system supply and installation, kitchen repairs and rangehood installation. (q) In 2024 Mr Briggs contacted Ms Lane and stated that he considered the Swanbourne Property belonged to him, that Ms Lane and (her husband) Ben were tenants and that there should be a lease in place for the Swanbourne Property. (r) Ms Lane declared that this was not correct, and that there had never been any lease agreement, no property manager and Ms Lane and Mr Briggs never discussed Ms Lane renting the Swanbourne Property from Mr Briggs. (s) In late 2025, Mr Briggs sent Ms Lane a document titled 'SUMMARY RE HOUSING FOR YOU ALL', which document referred to the ongoing repayments that Ms Lane had made to Mr Briggs and also his plan to put the Swanbourne Property on the market for sale. (t) On 8 April 2026, Mr Briggs sent a text message to Ben saying that he wanted to show the Swanbourne Property on 11 April 2026. (u) In response to that text message, Ms Lane contacted the real estate agent acting on the sale, Realmark North Coastal, and told them that she did not agree to any home open occurring. It did not occur. (v) It would be unconscionable for Mr Briggs to resile from his representations and the expectation and assumption that he created by his knowledge and is therefore estopped from acting contrary to the expectation and assumption. (w) By reason of the above, Mr Briggs holds the Swanbourne Property on constructive trust for Ms Lane. 20 In her first affidavit Ms Lane also described a number of communications that she had with Mr Briggs and the agent he appointed. She deposed that: -- 10 of 53 -- [2026] WASC 345 STRK J Page 11 (a) on 16 October 2024 Mr Briggs sent her an SMS, which included the statement 'Don't forget that on the sale you'll have cash to invest or top up any shortfall';8 (b) on 30 October 2024 Mr Briggs sent her an SMS, which included the statement 'Once the house is sold we can give you money or selectively send it we can discuss that by phone';9 (c) on 20 January 2026 Mr Briggs wrote to Ms Lane which communication included a proposal for the sale of the Swanbourne Property and use of the proceeds of sale;10 (d) on 24 January 2026, Mr Briggs sent Ms Lane an SMS which included the statement 'Again I may be repeating what you are already doing but it seems that the agent work to tie together the sale of Servetus and the location of a house for you. All this needs settlement coordination';11 (e) on 2 April 2026 Mr Briggs' real estate agent, Jeanette Bates of Realmark North Coastal, sent Ms Lane an email which included statements 'We are thinking to present the property for sale with a lease in place so that you have time to find another property' and 'we would require that the lease is fully executed prior to having a buyer entering into a contract of sale'.12 21 In her first affidavit Ms Lane further deposed that in the over 11 years that she occupied the Swanbourne Property with her family, Ms Lane had not signed any lease or rental agreement for the Swanbourne Property; had not received any lease renewal documents; had not received any invoices to pay rent or received receipts for payment of alleged rent; and there had been no property manager or inspections of the Swanbourne Property.13 22 Ms Lane deposed that on 18 April 2026, Realmark North Coastal proposed a home open for the purposes of Mr and Mrs Briggs selling the Swanbourne Property, and on 23 April 2026, Ms Lane instructed Cullen Macleod Lawyers to write to Realmark North Coastal and to 8 Affidavit of BS Lane sworn on 23 July 2026, par 15, BSL-8. 9 Affidavit of BS Lane sworn on 23 July 2026, par 17, BSL-9. 10 Affidavit of BS Lane sworn on 23 July 2026, par 19, BSL-10. 11 Affidavit of BS Lane sworn on 23 July 2026, par 21, BSL-11. 12 Affidavit of BS Lane sworn on 23 July 2026, par 23, BSL-12. 13 Affidavit of BS Lane sworn on 23 July 2026, par 25. -- 11 of 53 -- [2026] WASC 345 STRK J Page 12 Mr Briggs.14 Among other things, it was recorded in that correspondence that: In summary, Realmark have contended that the Property is subject to a lease and that it is proposed to conduct a home inspection to show potential buyers through the Property. Breanna's position is that no such lease or tenancy relationship exists and she does not give permission for a home inspection to occur. As you are aware, Breanna has registered an 'absolute' caveat over the Property. She has also lodged Western Australia Police Report – No. 631202 and Consumer Protection Complaint No. CPC-P-480986. Could you please confirm in writing by Friday 24 April 2026, that you will cancel and not re-book any home inspection for the Property. 23 On 1 May 2026 Mr and Mrs Briggs instructed Peter May McAuliffe Legal to respond to Cullen McLeod Lawyers. A copy of that communication was attached by Ms Lane to her affidavit.15 The instructions provided to that firm by Mr and Mrs Briggs as were recorded in that letter included the following: 1. In or around October 2014, your client and her husband, Mr Ben Lane, were facing eviction from a property on Stirling Highway in Nedlands. At that time, your client made representations that they were then paying around $1,000 per week and were unable to locate a suitable property at an affordable weekly rent. 2. Our clients, being Mrs Lane's parents, then offered to purchase a property for your client and her husband to rent, providing long-term rental security. Our clients' offer was conveyed on the basis that your client and her husband were able to pay the same ($1,000 per week) weekly rent. This conversation was a brief interaction between your client and Mr Briggs, as Mr Briggs was leaving the Stirling Highway Property. 3. Our clients dispute any conversation occurred at the Winter Retreat Property. Our clients keep diary entries dating back to that time, which include all of their attendances to assist your client with the children and packing in Perth, and the times your client would visit Yallingup. The diaries do not have a record of any discussion or attendance by your client in Yallingup at the relevant times. We are further instructed that issues of money were rarely discussed, certainly not with any formality or detail, 14 Affidavit of BS Lane sworn on 23 July 2026, pars 26 and 27, BSL-13. 15 Affidavit of BS Lane sworn on 23 July 2026, pars 29 and 30, BSL-14. -- 12 of 53 -- [2026] WASC 345 STRK J Page 13 except the mutual understanding that it was imperative that the [Swanbourne] Property would need to be sold. 4. Our clients have a history of obtaining investment properties on an interest-only loan arrangement, then selling them for a profit at the end of the interest-only term. 5. Under our clients' understanding of the arrangement, our clients would have the benefit of purchasing an appreciating asset, with potential for negative gearing, without having to pay the costs of a rental agency. Your client would have rental security in a desirable and convenient area, without rental inspections and the like. 6. … 7. On 2 December 2014, our clients became the registered proprietors of 36 Servetus Street, Swanbourne … 8. Our clients acknowledge that your client searched for and participated in the negotiations for the purchase of the [Swanbourne] Property. Nothing falls on this point, as our clients knew that your client was looking for a property that suited her family arrangements. Our clients had, however, advised that their budget for the purchase was $1,000,000. 9. Our clients purchased the [Swanbourne] Property for $1,100,000, loaning $1,200,000 from the National Australia Bank, and later refinanced with Bendigo Bank, for the purchase of the [Swanbourne] Property ('Mortgage'). 10. After settlement of the [Swanbourne] Property, various repairs and improvements were made to the [Swanbourne] Property at our clients' cost. Indeed, our clients retain a file of the capital expenditure they have paid in respect of the [Swanbourne Property], together with taxation returns declaring rent and outgoings. 11. Your client and her husband moved into the [Swanbourne] Property in December 2014. It was agreed that your client would pay $4,300 per month rent to our client. There was no dedicated period of duration of these arrangements ('Tenancy at Will'). 12. Your client and her husband have paid irregular amounts of rent since the commencement of the tenancy. Sometimes not at all, or as little as $334 per month. In other months, your client paid extra contributions, we understand, to make up the rental arrears. Our client continued to pay rates, insurance and taxes on the [Swanbourne] Property. Our clients have also paid for water -- 13 of 53 -- [2026] WASC 345 STRK J Page 14 consumption (in addition to rates) on the [Swanbourne] Property. … 15. From the commencement of the arrangements, the notation on our clients' bank statements was under the name of 'Benjamin Lane' with no further annotation. The statement notation then became 'Breanna Lane' in or around 2021. It was not until in or around June 2021 that our clients noticed the notations had changed (ad-hoc) to refer to mortgage payments. At that time, our clients had a conversation with your client, on no uncertain terms, that she was paying the rent, not paying the mortgage; a conversation that was reiterated several times between the parties. 16. In 2025, upon your client securing a position at the University of Western Australia, her capacity to pay rent was reduced. Her husband was also undergoing a medical diagnosis. Due to this financial strain, and without your client requesting same, our client proposed that your client reduce her rental repayments to $2,100 per month, personally covering the difference between the reduced rent and interest payable each month. 17. Despite the reduced rental rate, and as of April 2026, your client is in rental arrears of $5,300 ('First Breach of Tenancy'). 18. The interest-only mortgage repayments are approximately $5,500 per month. This sum increases each time the Reserve Bank raises the Cash Rate. Our clients have paid the entire windfall between the rental payments made by your client and the sum payable to the bank each month since the arrangements began in 2014. 19. There has been no payment towards the principal sum of the mortgage since 2014. Accordingly, the mortgage remains at $1,200,000. 20. Our clients have raised the issue of the need to sell the [Swanbourne] Property with your client for a number of years. On each occasion, your client has sought a 'further year' or dismissed our client's concerns non-committally. 21. The issue came to a head in November 2025, when our clients became aware that from December 2026, the Mortgage converts to principal and interest repayments of almost $10,500 per month. 22. Despite our clients communicating that the current rental agreement is untenable and their intention to sell the -- 14 of 53 -- [2026] WASC 345 STRK J Page 15 [Swanbourne Property], your client has refused to acknowledge the need for alternative arrangements to be made. Our clients have advised your client in writing that if monthly spending continued at the current rate, our client's Self Managed Superannuation Fund ('SMSF') would run out by 2032, driving the need to sell the [Swanbourne] Property. 23. We are instructed that your client has always been aware of the probability of the sale of the [Swanbourne] Property. … 24 By that letter it was also communicated that Ms Lane was required to vacate the Swanbourne Property on or before 24 June 2026; that on 24 April 2026, Mr and Mrs Briggs received and accepted an offer to purchase the Swanbourne Property; and settlement of the sale had been scheduled to occur on 31 August 2026. 25 By a letter sent by Cullen McLeod Lawyers to Peter May McAuliffe Legal, among other things on behalf of Ms Lane it was recorded that the background facts in the letter of 1 May 2026 are contested; the existence of any residential tenancy agreement in respect of the Swanbourne Property was denied; Ms Lane and her family would not vacate the Swanbourne Property; Ms Lane has a caveatable interest in the Swanbourne Property; and provision of a copy of the sale contract for the Swanbourne Property was invited.16 26 Ms Lane deposed that she had not received a copy of the contract for the sale of the Swanbourne Property. Further, she deposed that she had not reached any agreement with her parents regarding either the transfer of the Swanbourne Property to her based on the discussions at the meeting in October 2014; or a payment to Ms Lane on the sale of the Swanbourne Property representing her interest in the Swanbourne Property.17 27 On 9 July 2026 a notice was issued by Landgate under s 138B of the Transfer of Land Act. The 'Lapse Date' as recorded in the notice was 31 July 2026.18 28 Ms Lane deposed that if Caveat Q832977 was removed and the Swanbourne Property sold, she will be left without a home for her and her family to live and without funds to buy a new one. Ms Lane 16 Affidavit of BS Lane sworn on 23 July 2026, BSL-15. 17 Affidavit of BS Lane sworn on 23 July 2026, pars 33 and 34. 18 Affidavit of BS Lane sworn on 23 July 2026, BSL-6. -- 15 of 53 -- [2026] WASC 345 STRK J Page 16 described her occupation in her affidavit as 'Leasing Manager', and deposed that as a result of her long-time professional involvement in the property sector in Western Australia that she is aware that the rental market remains very tight and that competition for buying houses is high. 29 Attached to Ms Lane's first affidavit were annexures marked 'BSL-1' to 'BSL-15' which included copies of: Caveat Q832977 dated 15 April 2026; the statutory declaration dated 15 April 2026; the certificate of title to the Swanbourne Property; a Landgate requisition dated 27 May 2026; the letter to Landgate and supplementary statutory declaration dated 8 June 2026; the Landgate letter dated 9 July 2026; a photo dated 5 October 2014; SMS chains between Ms Lane and Mr Briggs; a letter from Mr Briggs to Ms Lane dated 20 January 2026; an email from Jeanette Bates to Ms Lane dated 2 April 2026; a letter from Cullen Macleod Lawyers to Mr Briggs and Realmark North Coastal; a letter from Peter May McAuliffe Legal to Cullen Macleod Lawyers dated 1 May 2026 and attachments; and a letter from Cullen Macleod Lawyers to Peter May McAuliffe Legal dated 2 June 2026 (with redaction). Ms Lane's second affidavit 30 Among other things, Ms Lane deposed in her second affidavit that she has continued to reside in the Swanbourne Property, together with her husband and children; and that it remains their principal and only place of residence. 31 Ms Lane noted that the bank statements attached to the statutory declaration she made on 15 April 2026 (a copy of which was attached to her first affidavit) record payments up to and including 1 April 2026. She further deposed that between 16 April 2026 and 9 July 2026 she made a further 12 payments of $600 to a total of $7,200, and attached to her second affidavit at BSL2-5 a copy of the Westpac transaction record reflecting the same. 32 On 9 July 2026 Ms Lane received the notice issued under s 138B(1) of the Transfer of Land Act, and has made no further payment since receiving that notice. As to the same she deposed that:19 I stopped making payments, as I understood the notice required me to obtain an order of this Court, to prevent the lapse of the Caveat, and the defendants disputed my interest in the Property. 19 Affidavit of BS Lane sworn on 11 August 2026, par 11. -- 16 of 53 -- [2026] WASC 345 STRK J Page 17 33 At paragraph 24 of her second affidavit Ms Lane deposed that she commenced making payments to an account nominated by Mr Briggs in December 2014 and those payments continued until 9 July 2026 with some few missed payments as detailed in her statutory declaration made on 15 April 2026, and a further two missed payments of $600 between 1 April and 16 April and 3 July 2026. 34 Ms Lane attached to her second affidavit a copy of the certificate of title for the Swanbourne Property, which among other things records lodgement of the Caveat on 15 April 2026.20 35 Ms Lane also attached to her second affidavit, among other things, various Landgate documents marked 'BSL2-8' to 'BSL2-14' respectively, which included a land enquiry services search of documents for Volume 1850 Folio 908; a copy of mortgage O306863; a copy of the discharge of mortgage P543584 document lodged 9 May 2023; a copy of the discharge of mortgage Q286729 document lodged 20 January 2025; a Landgate title information search of Volume 2722 Folio 585; a Landgate title information search of Volume 1958 Folio 938; and a copy of the discharge of mortgage O306860 document lodged 17 December 2019. Undertaking as to damages 36 At paragraphs 26 to 30 of her second affidavit Ms Lane deposed to her financial position, in circumstances where she filed in this proceeding an undertaking as to damages. In summary, Ms Lane deposed to holding modest amounts of cash at bank; to the amount she held by way of superannuation; to the value of her motor vehicle, household contents, personal effects and jewellery; and to her interest as a beneficiary of a trust which holds shares in a trading business. 37 She further deposed that she holds no credit card debt, no motor vehicle finance, no personal loans and no other liabilities; no shares or investments outside superannuation and the shares described in her affidavit; and no real estate other than the interest she claims in the Swanbourne Property. 38 Ms Lane is a full time permanent employee, and deposed to her gross annual salary before tax including superannuation. 20 Affidavit of BS Lane sworn on 11 August 2026, BSL2-7. -- 17 of 53 -- [2026] WASC 345 STRK J Page 18 Ms Lane's third affidavit 39 Ms Lane deposed that her third affidavit was made for the purpose of addressing information disclosed to her through Mr and Mrs Briggs' later material, in particular that contained in the first affidavit of Mr Briggs, the amended minute of proposed orders, and the second affidavit of Mr Briggs. 40 Ms Lane deposed that she did not know when the arrangement commenced that approximately $1.2 million had been borrowed in connection with a property purchased for $1.1 million; she did not know that Mr and Mrs Briggs had selected an interest only product; that her understanding was that Mr and Mrs Briggs would use their assets and borrowing capacity to facilitate the acquisition and that her continuing mortgage-sized payments would service the financed component in the ordinary way, including the reduction of principal over time; and she was at no point offered by Mr and Mrs Briggs to take over, refinance or otherwise assume liability for the mortgage. 41 Ms Lane deposed that if she had known that payments were being made which did not reduce the principal, that would have been a different arrangement from that which she understood; she would have regarded that information as important to her financial position; and it would have informed the steps available to her to protect the benefit she understood she was acquiring in the Swanbourne Property. 42 Ms Lane further deposed that from her review of Mr Briggs' second affidavit she was not able to identify the apportionment of the value attributed by Bendigo and Adelaide Bank Limited to each of the 'three-property security pool' the loan to value ratio used by Bendigo and Adelaide Bank Limited, or whether all three properties were required by Bendigo and Adelaide Bank Limited or offered by Mr and Mrs Briggs; and she was further not able to identify from any material filed by Mr and Mrs Briggs that they had made any application for an extension or refinance of the current mortgage facility after the interest only period, or any default notice issued by the bank or requirement that the Swanbourne Property be sold. 43 Ms Lane deposed to her understanding by which, based on the materials available to her, the net proceeds of sale, excluding marketing and other settlement costs, would be $944,122.68. Ms Lane recorded her concern that this sum may be materially less than the value of the beneficial interest she understood she had been building. -- 18 of 53 -- [2026] WASC 345 STRK J Page 19 44 Ms Lane recorded that if required by the court, she would commence and prosecute substantive proceedings. However, Ms Lane recorded that due to existing travel commitments, she would be out of Australia from 21 August 2026 to 1 September 2026. She recorded that she seeks that any requirement to commence substantive proceedings be by 15 September 2026. 45 Attached to Ms Lane's third affidavit was an annexure marked 'BSL3-1' which was a copy of Ms Lane's Air New Zealand e-ticket and itinerary issued on 16 March 2026. The evidence relied upon by Mr and Mrs Briggs 46 The following is intended to be a summary and not a complete account of the evidence relied upon by Mr and Mrs Briggs. Again, the evidence is summarised here for the purposes of outlining the context in which Ms Lane's application is opposed, and does not give rise to any findings of fact. Mr Briggs' first affidavit 47 In his first affidavit Mr Briggs recorded the familial relationship as between the parties and that he and Mrs Briggs are the registered proprietors of the Swanbourne Property as joint tenants. Circumstances in which the Swanbourne Property was purchased 48 In his affidavit, Mr Briggs deposed to the discussions had with Ms Lane in about September 2014, when Ms Lane and her family were residing in a rental property in Claremont, when he was told of her urgent need of alternative accommodation. 49 Mr Briggs deposed that he had conversations with Mrs Briggs after speaking with Ms Lane, in which (among other things) they discussed helping Ms Lane with her loss of rental accommodation; that they would have to borrow the whole of the purchase price for a suitable property, which would cost at least $1 million; that the western suburbs of Perth were likely going to be a safe investment; that through this investment, we could avoid the costs of paying real estate agents to rent the property; and a rental arrangement of this nature would provide Ms Lane and her children a secure, long-term place to live. -- 19 of 53 -- [2026] WASC 345 STRK J Page 20 50 As to the circumstances in which Mr Briggs says the Swanbourne Property was purchased, he deposed as follows:21 On 7 October 2014, some time after the conversations referred to in paragraphs 11 and 12 above, I visited the plaintiff at the Stirling Highway Property. At the end of the visit I had a conversation with the plaintiff in which I said words to the following effect: a. I said I will buy a house for you to live in if you can pay the amount that you are presently paying in rent; b. I said that the budget I was looking at would be to pay a price of around $1 million with weekly payments from her of $1,000 per week; c. I said she could look for a suitable property. I did not at any time say to the plaintiff words to the effect that if I purchased a property for the plaintiff and the family to live in, she would have an interest in the property, or that she would get the property when we died. At no time did the plaintiff say to me that I had told her or that her understanding was that she would have an interest in the property we might purchase, or later did purchase, for her to live in or that she would get the property when we died. I deny that I had any conversations with the plaintiff to the effect set out in paragraph 12 of her affidavit, referring to paragraph 16 of her statutory declaration. In particular, I did not say things to the effect set out in paragraphs 20 to 28 of the statutory declaration 51 Mr Briggs in his affidavit described the circumstances in which the Swanbourne Property was identified and the purchase negotiated. He deposed that the Swanbourne Property was purchased on or about 1 December 2014 for $1,100,000 plus duty and settlement fees (which additional amounts was about $100,000). Further, he deposed that he and Mrs Briggs borrowed from the National Australia Bank Limited (NAB) $1,200,000 on an interest only basis to purchase the Swanbourne Property, and granted a mortgage over it. Payments made 52 Mr Briggs deposed that until July 2019, Mr and Mrs Briggs received rental payments from Ms Lane or her husband into their NAB account in the amount of approximately $4,334 per month. Further, he deposed that from December 2014 to December 2019, he and 21 Affidavit of AC Briggs sworn on 12 August 2026, pars 11 - 13. -- 20 of 53 -- [2026] WASC 345 STRK J Page 21 Mrs Briggs paid the interest-only amounts on the first mortgage from their NAB Classic Banking Account. 53 Mr Briggs recorded that in or around July 2019, Ms Lane made several late and ad hoc payments in respect of rental payments and being around $4,000 in rental arrears between August to October 2019. Further, the payments made in respect of Ms Lane residing at the Swanbourne Property were described only by the transferor 'Benjamin Lane 421520' each month into the NAB Classic Banking Account held by Mr and Mrs Briggs, and Ms Lane's name and reference to 'mortgage' does not appear on such records.22 54 He deposed that he and Mrs Briggs continued to pay the interest-only repayments from the NAB Classic Banking Account from December 2014 to June 2015 and throughout 2018 and 2019, and that no payments were made in reduction of the principal. Refinance of the moneys borrowed from the National Australia Bank 55 Mr Briggs said that in 2019, the interest-only period under the first mortgage was coming to an end, and although he does not recall the exact conversations held with Ms Lane at that time, he deposed that Ms Lane said words to the effect that she and her family needed more time at the Swanbourne Property before it was to be sold. 56 Mr Briggs deposed that on 7 July 2019, NAB conducted a kerbside valuation to determine whether they would allow a further interest-only mortgage period extension in order to prevent the house being sold, but the extension was refused some time in July 2019. By email or telephone the bank advised that (inter alia) there was no equity in the home; and that due to their age and being retired, a further interest-only facility would not be offered. 57 Mr Briggs also gave evidence to the effect that on about 17 December 2019, he and Mrs Briggs refinanced the loan with the Bendigo and Adelaide Bank Limited for a total of $1,202,972.90 (which he described in his affidavit as the second mortgage); and he and Mrs Briggs paid all of the costs of and related to the refinance. 22 Affidavit of AC Briggs sworn on 12 August 2026, par 30. -- 21 of 53 -- [2026] WASC 345 STRK J Page 22 Further payments made and changes to the security 58 As to deposits made by Ms Lane into Mr Briggs' Bendigo and Adelaide Bank Limited account from February 2020, Mr Briggs recorded as follows:23 a. From February 2020 to October 2020, the rental payments changed to $4,000; b. In February 2020 and March 2020, the payments are described as 'rent' on the bank statement; c. No lump sum was paid by [Ms Lane] to our accounts upon withdrawal of money from [Ms Lane's] superannuation in April 2020; d. Between April 2020 and May 2021, the payments are described as 'Benjamin Lane' and the relevant month; e. From October 2020, the rental payments returned to $4,300 until July 2025; f. The first reference to payment relating to a 'mortgage' on our bank statement was in June 2021; g. Between June 2021 and December 2024, there are multiple different variations of 'Benjamin Lane (month) Mortgage' and 'Benjamin Lane (month); h. First reference to a payment being made by Breanna Lane was January 2025 wherein the payment descriptions changed between mortgage, rent, and the relevant month; i. As recently as 26 February 2026, [Ms Lane] described the payment as 'rent' in the bank statement description. 59 Mr Briggs deposed that in respect of the multiple different descriptions used by Ms Lane and her husband, he did, on multiple occasions, have conversations with Ms Lane in which he said words to the effect that Ms Lane was not paying the mortgage; that he and Mrs Briggs were paying the mortgage; and that Ms Lane was paying rent. He deposed further that after those conversations, the description used by Ms Lane and her husband would change for a period but revert to 'mortgage' sometime later, until a further conversation was had on the same issue. 23 Affidavit of AC Briggs sworn on 12 August 2026, par 43. -- 22 of 53 -- [2026] WASC 345 STRK J Page 23 60 In respect of the changes to rental payment amounts, and since in or around 2024, Mr Briggs said that he had several conversations with Ms Lane where she made him aware of the changes to her and her husband's employment which limited their ability to make the agreed payments; and that Mr Briggs would accept a lower payment from Ms Lane to allow for those issues. 61 He also deposed that neither Ms Lane nor her husband paid money directly into the mortgage accounts, and Mr and Mrs Briggs paid the interest-only components of all mortgages taken out in respect of the Swanbourne Property from their own bank accounts. 62 In 2023 Mr and Mrs Briggs sold an investment property on St Georges Terrace in Perth that had been used as a security for the second mortgage, which was sold at a loss and the security was withdrawn at settlement of that sale. 63 Mr Briggs deposed that in or around May 2024, he had a conversation with Ms Lane, during the course of which he was told by Ms Lane that she had been terminated from employment. Based on subsequent conversations with Ms Lane, it was Mr Briggs' belief that Ms Lane remained unemployed for 10 months. 64 On 22 June 2024, Ben sent an email to Mr Briggs which recorded that he had been looking for 'new rental properties' on behalf of the family in June 2024; and Ms Lane's family were unable to consider purchasing a property as they had 'no deposit, no record of savings and [Ms Lane]'s temporary unemployment'.24 65 Mr Briggs deposed that in or around June 2024, he had a conversation with Ms Lane during which he said words to the effect that in view of her financial issues he offered to pay her $10,000 per month; that sum was offered on the basis that she would continue to pay rent; and ongoing payment of rent would assist Ms Lane's ongoing record of paying rent and would assist in applying for a future rental. He further deposed that from July 2024 to June 2025 he and Mrs Briggs paid $10,000 per month, plus a further $2,100 in July 2025 to Ms Lane, a total of $122,100, to subsidise Ms Lane's income and living expenses. 66 Mr Briggs also recorded that in January 2025 the Bendigo and Adelaide Bank Limited agreed to remove the security on Mr and Mrs Briggs' main place of residence, due to the increase in value of the 24 Affidavit of AC Briggs sworn on 12 August 2026, par 54, AWB11. -- 23 of 53 -- [2026] WASC 345 STRK J Page 24 Swanbourne Property, such that it became (and is now) subject to a registered mortgage in favour of the Bendigo and Adelaide Bank Limited (Mortgage O306863), with no cross-securities. 67 Mr Briggs said that as at 5 August 2026 the total Swanbourne Property mortgage was $1,200,000. 68 Mr Briggs recorded that he and Mrs Briggs have paid $201,338 more towards the Swanbourne Property mortgages together with insurance, rates, water, repairs, land tax and capital improvements on the Swanbourne Property than Ms Lane paid in rent during the period December 2014 to June 2025, and he anticipated that a further $60,650 would be paid in the 2026 financial year. Capital improvements 69 Mr Briggs deposed that Ms Lane and her husband contacted him and Mrs Briggs on various occasions when repairs and maintenance needed to be completed at the Swanbourne Property; and that he and Mrs Briggs paid for improvements which they believed would enhance value, such as re-landscaping. Attached to his affidavit were emails and invoices concerning those expenses.25 Circumstances requiring the sale of the Swanbourne Property 70 Among other things, Mr Briggs deposed that as at August 2026 the monthly repayment of interest on the mortgage was $6,129 per month (which he and Mrs Briggs continued to meet, together with insurances, rates, taxes and water outgoings); that no rent has been paid by Ms Lane since July 2026; that together with their own daily living expenses, he and Mrs Briggs were currently drawing $17,000 per month from their self-managed superannuation fund; that from 5 December 2026 the minimum monthly repayments will become $13,513 per month based at the current interest rates; that in or around July 2026, Mr Briggs had a telephone conversation with his mortgage manager at the Bendigo and Adelaide Bank Limited and asked whether he and Mrs Briggs would be able to qualify for further financial assistance and was told that they did not qualify for any refinancing or interest only mortgage options, or any other mortgage; that if the Swanbourne Property was not sold, he and Mrs Briggs would deplete their capital by 2032 at the current interest rates, not taking into account the repayments from December 2026; that if the Swanbourne Property 25 Affidavit of AC Briggs sworn on 12 August 2026, par 67, AWB15. -- 24 of 53 -- [2026] WASC 345 STRK J Page 25 was not sold, he and Mrs Briggs would be unable to attain a pension; that the proposed sale of the Swanbourne Property represents the only practical and financially responsible means by which he and Mrs Briggs can secure their own financial sustainability; and any restriction on sale of the Swanbourne Property would materially and adversely affect their financial security, retirement sustainability and capacity to meet their own living expenses. 71 Mr Briggs said that from 2024 he had numerous conversations with Ms Lane by phone, email and text message that the Swanbourne Property had to be sold in 2026, and he described his various unsuccessful attempts at communicating with Ms Lane. Listing and sale of the Swanbourne Property 72 Mr Briggs said that in March 2026, he and Mrs Briggs contacted Jeanette Bates of Realmark North Coastal Real Estate to sell the Swanbourne Property. 73 He deposed that in order to provide some assistance to Ms Lane and her family, he and Mrs Briggs asked Realmark to present the Swanbourne Property for sale subject to a formal lease, allowing Ms Lane until September 2026 to find new accommodations. 74 On 11 March 2026 he and Mrs Briggs entered into an exclusive agency agreement with Realmark, and Ms Lane was made aware of the same by an email sent by Mr Briggs dated 9 March 2026.26 75 Mr Briggs deposed that he was first informed that Ms Lane may have made an application to lodge a caveat over the Swanbourne Property by Realmark on 18 April 2026; that based on verbal discussions with Realmark, he understood that the caveat had not been accepted by Landgate. 76 On 20 April 2026 Mr Briggs instructed Realmark to start to make efforts to have Ms Lane and her family removed and end the tenancy-type relationship he and Mrs Briggs believed to be on foot, and a notice of termination of the tenancy arrangement was issued by Realmark to Ms Lane and her family on 20 April 2026. 77 Mr Briggs deposed that on 23 April 2026, he was advised that two separate parties had submitted offers to purchase the Swanbourne Property, and at that time Mr Briggs was advised by Realmark of the 26 Affidavit of AC Briggs sworn on 12 August 2026, par 95, AWB22. -- 25 of 53 -- [2026] WASC 345 STRK J Page 26 amount of the offers and that the submitting parties had concerns regarding the purported caveat. 78 He further deposed that on 23 April 2026 he had not been provided with a copy of Ms Lane's application for caveat, or any supporting documents, and based on conversations that he had with Realmark between 19 and 23 April 2026, he verily believed that the application for caveat could not be downloaded from Landgate at that time. 79 Mr Briggs said that on 24 April 2026, he and Mrs Briggs made the decision to accept an offer presented on the understanding that the caveat for which Ms Lane had applied would not stand, and that he did not obtain copies of the caveat application until after the sale contract was signed. 80 Mr Briggs deposed to his belief that after it was presented, the Caveat was not accepted or registered on the title for the Swanbourne Property until mid June 2026; and on 28 June 2026, he and Mrs Briggs executed Landgate forms, seeking that the Caveat be removed by operation of a 21 day notice. 81 As to the consequences that would flow if the Caveat was extended, Mr Briggs deposed that he and Mrs Briggs would be subjected to the following:27 a. Paying the Second Mortgage: i. until 5 December 2026 $6,129 per month (subject to interest changes), on account of interest only on the second mortgage; and then ii. from 5 December 2026 $13,513 per month (subject to interest rates). for an undetermined period of time. b. Rates, water consumption, Insurances and Land Taxes in respect of the Swanbourne Property for an undetermined period of time; and c. Potential liability for claim by the purchasers under the Sales Contract; 27 Affidavit of AC Briggs sworn on 12 August 2026, pars 119 - 120. -- 26 of 53 -- [2026] WASC 345 STRK J Page 27 d. Continue to be subject of 'tenancy at sufferance' between ourselves and [Ms Lane], who has been paying a nominal amount of rent in respect of her occupation of the Swanbourne Property, at her own election and reducing in accordance with her own wage fluctuations, with the plaintiff refusing to enter into a lease; e. Be subject to potential market forces with respect to the value of the Swanbourne Property; f. Degradation of our limited financial resources, without the prospect of qualifying for a pension; g. Potential that the Bendigo and Adelaide Bank repossess the property and initiate sale under unfavorable circumstances of sale. I verily believe, based on financial information known to myself and my wife at this time, that the proceeds of the sale of the Swanbourne Property will be approximately $800-850,000, once the Second Mortgage is discharged, Capital Gains Tax is paid, and commissions and adjustments of settlement are complete. Financial support of Ms Lane and her family 82 Mr Briggs deposed to the significant financial support that he and Mrs Briggs had provided to Ms Lane and her family over time. He also referenced various searches which indicated that Ms Lane has a very limited ability to meet the damages which would flow from the extension of the Caveat pursuant to her undertaking. 83 Attached to Mr Briggs' first affidavit were annexures marked 'AWB1' to 'AWB38' which included copies of: the first NAB account statement for the first mortgage as at 31 December 2014; the Landgate registration of the first mortgage dated 3 December 2014; various bank statements from the NAB Classic Account for the first mortgage; a NAB kerbside valuation of the Swanbourne Property dated 7 July 2019; the Landgate document recording discharge of first mortgage dated 17 December 2019; the final NAB bank statement for the first mortgage from 24 October 2019 to 19 December 2019; a document described as the second mortgage settlement statement dated 17 December 2019; the Landgate registration document of second mortgage O131620 dated 17 December 2019; documents described as various bank statements from the Bendigo Bank account; a document described as second mortgage statement dated 8 August 2020; an email from Ms Lane's husband (Ben) to Mr Briggs dated 22 June 2024; a statement of the balance of the Swanbourne Property mortgage dated 5 August 2026; -- 27 of 53 -- [2026] WASC 345 STRK J Page 28 tax returns for Mr and Mrs Briggs for the 2015 to 2025 financial years; a table of income and expenditure produced from tax records for the 2015 to 2025 financial years for Mr and Mrs Briggs; correspondence and invoices paid to maintain or improve the Swanbourne Property; a mortgage loan account statement showing minimum monthly repayments of interest as at 12 August 2026; a statement of Mr and Mrs Briggs' assets and liabilities as at 30 June 2026; a statement of Mr and Mrs Briggs' self-managed superannuation fund balance as at 30 June 2026; an email described as being from the Bendigo Bank Busselton manager dated 30 July 2026; correspondence from financial advisor Ray Albrighton of Private Wealth Partners dated 1 May 2025; correspondence from Realmark dated 3 March 2026; an email sent by Mr Briggs to Ms Lane advising of the decision to sell the Swanbourne Property dated 9 March 2026; the exclusive agency residential selling agency agreement dated 11 March 2026; text messages between Ms Lane and Mrs Briggs; a photograph of a notice taped to the door of the Swanbourne Property taken on 18 April 2026; correspondence received from Realmark regarding an offer dated 23 April 2026; the sale contract of the Swanbourne Property dated 24 April 2026; the affidavit of Mr Brooker sworn on 29 July 2026; a Landgate search of 'Breanna Sarah Briggs'; a Landgate search of 'Breanna Sarah Lane'; a Landgate search of 'Benjamin David Lane'; an email from Peter May McAuliffe Legal to Ms Lane dated 3 August 2026 regarding Ms Lane's financial information; emails from Ms Lane to Peter May McAuliffe Legal regarding receipt of documents dated 3 August 2026; an ASIC search of 'Breanna Sarah Lane' dated 11 August 2026; an ASIC search of 'Glossy Boys Pty Ltd ACN 654 868 363' dated 11 August 2026; an appraisal for a 2019 Toyota RAV4; and an ABN search for the 'Trustee for the BW Property Trust' dated 11 August 2026. Mrs Briggs' affidavit 84 In her affidavit Mrs Briggs recorded the familial relationship as between the parties and that she and Mr Briggs are the registered proprietors of the Swanbourne Property as joint tenants. 85 Mrs Briggs deposed to having read Mr Briggs' affidavit and confirmed that his affidavit accorded with her general understanding of the facts, subject to the personal conversations between Mr Briggs and any third party to which Mrs Briggs had not been a party. 86 Among other things, Mrs Briggs deposed to having had direct contact with Ms Lane in person before the start of 2026, and more -- 28 of 53 -- [2026] WASC 345 STRK J Page 29 recently by text message, in which Ms Lane had refused to acknowledge the need to sell the Swanbourne Property, or to respond to proposals to vacate it. 87 Mrs Briggs deposed to her recollection of a conversation she had with Mr Briggs in about October 2014 as to the substance of the conversation Mr Briggs had had with Ms Lane. 88 Mrs Briggs deposed to having had numerous conversations with Ms Lane between 2014 and the date of her affidavit during which Mrs Briggs told Ms Lane words to the effect that Ms Lane did not own the Swanbourne Property. (Those conversations were not further described by Mrs Briggs.) 89 Mrs Briggs deposed that she at all material times has known that the Swanbourne Property would need to be sold. Mr Brooker's affidavit 90 Mr Brooker is not a party to this proceeding. He made an affidavit as a person affected by the proceeding. 91 Among other things, Mr Brooker deposed that he and his wife Jennifer are the purchasers of the Swanbourne Property, having entered into a contract on 24 April 2026; that the contract was not subject to finance; and that a deposit of $100,000 had been paid. 92 As to the Caveat, Mr Brooker deposed as follows:28 We entered into this contract with full knowledge of the caveat lodged by the plaintiff on 15 April 2026. The contract contains Special Condition 1, which makes the contract conditional upon the caveat being unconditionally withdrawn, rejected by Landgate upon examination, or otherwise removed from the certificate of title on or before the settlement date. The contract also contains Special Condition 7, in which the defendants warranted to us that the plaintiff holds no legal, equitable, beneficial or other interest in the Property of any kind arising from any verbal agreement, written agreement, financial contribution, family arrangement, promise or representation. We contracted on the basis of those warranties. 93 Mr Brooker deposed that in reliance upon the purchase of the Swanbourne Property proceeding on 31 August 2026, he and Jennifer entered into an unconditional contract for the sale of our current home, which settlement is also scheduled to take place on 31 August 2026. 28 Affidavit of CS Brooker sworn on 29 July 2026, par 6. -- 29 of 53 -- [2026] WASC 345 STRK J Page 30 94 He deposed to the significant consequences for his family should settlement of the Swanbourne Property not proceed on 31 August 2026. Of note, his family will not have a permanent residence in circumstances where no arrangement for temporary accommodation had been made as the sale contracts contemplated contemporaneous settlement on 31 August 2026. Mr Brooker described in his affidavit the anticipated financial consequence of delay in settlement of the Swanbourne Property, and the likely impact upon his family. 95 Mr Brooker attached to his affidavit a copy of the purchase contract of the Swanbourne Property; and a copy of the sale contract for his existing residence marked 'CSB-1' and 'CSB-2' respectively. Mr Briggs' second affidavit 96 Mr Briggs' second affidavit concerned the mortgage registered against the Swanbourne Property and the indebtedness it secures. 97 As to the mortgage of the Swanbourne Property, Mr Briggs deposed that since it was purchased, to present, the Swanbourne Property was encumbered by interest only mortgages, first from 1 December 2014 to 17 December 2019 in favour of NAB (Mortgage M845474), and then from 17 December 2019 to present in favour of the Bendigo and Adelaide Bank Limited (Mortgage O306860). 98 Mr Briggs deposed that the total amount borrowed (secured by the first mortgage in favour of the NAB) was $1,200,000 for the purchase of the Swanbourne Property, together with settlement fees, outgoings and purchase expenses; and the balance of the first mortgage was $1,200,000 at all times between 1 December 2014 and 17 December 2019. He further deposed that the monthly interest payments were met from a separate bank account. 99 As to the refinance, Mr Briggs deposed that on 17 December 2019, he and Mrs Briggs refinanced the Swanbourne Property; the second mortgage was registered on 17 December 2019 in favour of Bendigo and Adelaide Bank Limited and the indebtedness was $1,200,000; and at the time of the refinance, there was a shortfall of approximately $4,009 on account of partial interest and bank fees which was paid by Mr and Mrs Briggs (and was not added to the amount secured). -- 30 of 53 -- [2026] WASC 345 STRK J Page 31 100 Further as to the refinance, Mr Briggs deposed that in order to obtain the second mortgage, the Bendigo and Adelaide Bank Limited registered the second mortgage across the Swanbourne Property and two additional properties. The additional properties are known as 88 Dunsborough Lakes Drive, Dunsborough, and Unit 85, 22 St Georges Terrace, Perth. 101 On 9 May 2023 Unit 85, 22 St Georges Terrace, Perth was sold and it was released from the cross security. No money was required to be paid upon that release, and the second mortgage did not increase upon that sale. 102 On 20 January 2025 the Bendigo and Adelaide Bank Limited removed the second mortgage cross security on the property known as 88 Dunsborough Lakes Drive, Dunsborough on the request of Mr and Mrs Briggs. No money was required to be paid upon that release. 103 As to the payment of monthly interest to the Bendigo and Adelaide Bank Limited, Mr Briggs deposed that he and Mrs Briggs would pay the relevant amounts on or around the 5th day of each month from their nominated bank accounts, to ensure that the balance of the second mortgage account remained at $1,200,000. 104 Mr Briggs deposed that other than the interest and bank fees that were applied to the first and second mortgage accounts from time to time, in accordance with the mortgage contract, neither he nor Mrs Briggs applied funds borrowed and secured by the first and second mortgages to any other asset than the Swanbourne Property. 105 Mr Briggs attached to his second affidavit a copy of what he described as being the final extension of the interest only period, executed on about 3 December 2024.29 106 As at the date of his second affidavit, Mr Briggs deposed that the amount owed and secured by the second mortgage was $1,200,000, and that in order to discharge the second mortgage as at 17 August 2026 the amount payable would be $1,202,727.32. 107 Finally, Mr Briggs deposed that the second mortgage is the only liability which Mr and Mrs Briggs have registered against their names, and that the $1,200,000 required to discharge the second mortgage does 29 Affidavit of AC Briggs sworn on 17 August 2026, ACB4. -- 31 of 53 -- [2026] WASC 345 STRK J Page 32 not include any other liabilities they have to Bendigo and Adelaide Bank Limited pursuant to credit cards or otherwise. 108 Mr Briggs attached to his second affidavit six documents marked 'ACB1' to 'ACB6' which included a copy of the document recording the discharge of the mortgage on Unit 85, 22 St Georges Terrace property lodged 9 May 2023; a copy of a bank statement from what is described as second mortgage account in May 2023; a copy of the document recording the discharge of the mortgage on the Dunsborough property lodged 20 January 2025; a copy of the Bendigo Complete Home Loan Schedule for final extension of the second mortgage dated 2 December 2024; a copy of a bank statement as to the balance of the second mortgage as at 17 August 2026; and a copy of a quote from Bendigo and Adelaide Bank Limited for discharge of the second mortgage dated 17 August 2026. Overview of the parties' respective positions on 29 July 2026 The position of Ms Lane 109 Ms Lane sought the further extension of the operation of the Caveat and indicated that she was ready and willing to commence a substantive proceeding with respect to her claimed interest in the Swanbourne Property. 110 She was particularly concerned that if the Caveat was removed and the Swanbourne Property sold, she and her family would be left without a home and without funds to buy a new one. 111 On 18 August 2026 an amended minute of proposed orders was filed by Ms Lane. The requested orders were as follows:30 The Plaintiff respectfully requests that the following orders be made: 1. Pursuant to s 138C(2) of the Transfer of Land Act 1893 (WA), the operation of Caveat Q832977 lodged on 15 April 2026 and registered against the land described as 36 Servetus Street, Swanbourne WA 6010, being the whole of the land comprised in Certificate of Title Volume 1850 Folio 908 (Swanbourne Property), be extended until further order of the Court. 2. The Plaintiff shall, no later than 15 September 2026, commence an action in this Court against the First and Second Defendants and any other necessary parties seeking a declaration of the 30 Plaintiff's minute of proposed orders filed on 18 August 2026. -- 32 of 53 -- [2026] WASC 345 STRK J Page 33 interest claimed by the Plaintiff in relation to the Swanbourne Property and any related relief. 3. The Plaintiff's undertaking as to damages filed on 23 July 2026 shall continue while Caveat Q832977 remains extended pursuant to these orders. PROCEDURAL 4. A sealed copy of these orders be provided to the Third Defendant forthwith. 5. There be liberty to apply on 48 hours' written notice to the other parties, or such shorter period as the Court may direct. COSTS 6. The question of costs be reserved. The position of Mr and Mrs Briggs 112 The minute of proposed orders filed on behalf of Mr and Mrs Briggs on 12 August 2026 contained a number of proposed orders that went beyond the scope of relief available in this proceeding (which concerns the extension of the operation of the Caveat). They concerned orders securing vacant possession of the Swanbourne Property; the delivery of the Swanbourne Property at a certain condition; and the settlement of the sale of the Swanbourne Property. In the course of the hearing on 14 August 2026, it was accepted by counsel for Mr and Mrs Briggs that not all of the orders proposed were available in this proceeding. That concession was properly made. 113 At the request of the court, on 17 August 2026 an amended minute of proposed orders was filed on behalf of Mr and Mrs Briggs. The requested orders were as follows:31 The First Defendant and Second Defendant request the following orders be made: 1. The operation of Caveat Q832977 lodged on 15 April 2026 registered against the land described as 36 Servetus Street Swanbourne WA 6010, being whole of the land comprised in Certificate of Title Volume 1850 Folio 908 ('Swanbourne Property') do lapse at midnight on the date of these orders. 31 First and second defendants' amended minute of proposed orders filed on 17 August 2026. -- 33 of 53 -- [2026] WASC 345 STRK J Page 34 2. At settlement on the sale of the Swanbourne Property, the balance of the proceeds of sale be retained by the First and Second Defendant, absolutely. PROCEDURAL 3. Such other Order as determined appropriate by the Supreme Court of Western Australia. 4. There be liberty to apply on 48 hours' notice. COSTS 5. The First and Second Defendants' costs be paid by the Plaintiff. Or in the alternative: The First Defendant and Second Defendant request the following orders be made: 1. The operation of Caveat Q832977 lodged on 15 April 2026 registered against the land described as 36 Servetus Street Swanbourne WA 6010, being whole of the land comprised in Certificate of Title Volume 1850 Folio 908 ('Swanbourne Property') do lapse at midnight on the date of these orders. 2 At settlement on the sale of the Swanbourne Property, the First Defendant and Second Defendant shall direct that the net proceeds of sale after discharge of Mortgage 0306863 in favour of Adelaide and Bendigo Bank and payment of the usual settlement and other costs of the sale ('Proceeds of Sale') be paid into Court on the basis that the transfer will not defeat, extinguish or destroy any interest the Plaintiff might have in respect to contributions made to the purchase, maintenance or improvement of the Property. 3. The Plaintiff shall, within 21 days of the making of these orders, commence an action in this Court, against the First and Second Defendant (and any other necessary parties) seeking a declaration as to any interest claimed by the Plaintiff in relation to the Proceeds of Sale and any related relief. 4. Where: (a) the Plaintiff makes an application pursuant to Order 3, this Court may make such appropriate orders in relation to the Proceeds as deemed fit; or (b) the Plaintiff fails to make an application pursuant to Order 3, there be liberty for the first and second defendants to apply as to the payment of the Proceeds. -- 34 of 53 -- [2026] WASC 345 STRK J Page 35 5. No later than 5.00pm on the date of these orders, the First and Second Defendant cause a copy of these Orders to be provided to Real Estate Agents and Settlement Agents appointed to effect sale of the Swanbourne Property, with written notice to the Plaintiff. PROCEDURAL 6. There be liberty to apply on 48 hours notice to the other parties. COSTS 7. The question of costs be reserved. The applicable principles Extension of the operation of a caveat 114 The principles to be applied when considering whether to extend the operation of a caveat are well settled. 115 Under s 137 of the Transfer of Land Act, a person claiming any estate or interest in land under the operation of the Act may lodge a caveat with the Registrar of Titles. 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.32 116 Section 137 provides that a caveat may be lodged, in an approved form, forbidding the registration of any person as transferee or proprietor of and of any instrument affecting such estate or interest, either absolutely, or until after notice of the intended registration or dealing be given to the caveator, or unless such instrument be expressed to be subject to the claim of the caveator. 117 In the case of caveats other than those listed in s 138A, the registered proprietor may apply under s 138B to the Registrar to issue a 21 day notice to the caveator. The effect of such a notice is that, once served, the caveat will lapse 21 days after the date of service unless: (a) the caveator obtains an order from the Supreme Court extending the operation of the caveat; and (b) the order is lodged with the Registrar. 32 Leros Pty Ltd v Terara Pty Ltd [1992] HCA 22; (1992) 174 CLR 407, 419. -- 35 of 53 -- [2026] WASC 345 STRK J Page 36 118 Under s 138C(1), the caveator may apply to the Supreme Court for an order extending the operation of the caveat. The court may make various orders, including an order extending the operation of the caveat for a specified period or until further order, 'if satisfied that the caveator's claim has or may have substance'.33 However, if not satisfied that the caveator's claim has or may have substance, the court must dismiss the application.34 The court may also make such ancillary orders in relation to the application as it thinks fit.35 119 The onus fell upon Ms Lane to satisfy the court that the Caveat should be extended. 120 Similar principles to those on an application for an interlocutory injunction generally apply to the application under the Transfer of Land Act, with the added consideration that the application concerns an interest in land and is governed by the Transfer of Land Act. Further, the principles that apply to an application under s 138(2) of the Transfer of Land Act are the same as those that apply to an application to extend the operation of a caveat under s 138C(2) of that Act.36 121 On the application, the question for determination is whether or not the caveator can demonstrate they may have an interest in land which is capable of supporting a caveat. By its nature, a caveatable interest must be a proprietary interest in land,37 that is recognised at law or in equity. 122 As is noted above, a caveat is a form of statutory injunction which prevents registration of a dealing against land until the caveator has been given a reasonable opportunity to justify the caveat by pursuing such remedies as they may have.38 123 The caveator must satisfy the court that, on the evidence presented to the court, their claim for an interest in the property raises a serious question to be tried or whether it may have substance.39 Even if a claim may have substance, the caveat might not be extended having regard to 33 Transfer of Land Act s 138C(2)(a). 34 Transfer of Land Act s 138C(2)(b). 35 Transfer of Land Act s 138C(2)(c). 36 Barrett v King [2024] WASCA 169 [24]; Perron Investments Pty Ltd v Tim Davies Landscaping Pty Ltd [2009] WASCA 171 [41]. 37 Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42, 50. 38 J and H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546, 552, 558; Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (44 - 45); Brogue Tableau Pty Ltd v Binningup Nominees Pty Ltd [2007] WASCA 179; (2007) 35 WAR 27 [68]. 39Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (48 - 50). -- 36 of 53 -- [2026] WASC 345 STRK J Page 37 factors including the apparent strength or weakness of the caveator's claim.40 124 In an application for an extension of caveat it is not appropriate to attempt to resolve conflicts of evidence on affidavit.41 125 A caveatable interest must exist at the time a caveat is lodged. A caveat cannot be lodged to protect a future interest.42 126 Further, the caveat must not go beyond the legitimate claim necessary to protect the rights of the caveator.43 Removal of the caveat will, in many cases, have the effect of destroying the benefit of the proprietary interest claimed in the caveat.44 127 In the exercise of the court's discretion, the balance of convenience is a relevant factor. There is no rule of law that once an arguable case for a caveatable interest is established, removal of the caveat will only be ordered if it is shown that the 'circumstances are so unusual' that the caveat should be removed. The discretion is to be exercised having regard to the particular circumstances of the case.45 Disposition Should the operation of the Caveat be extended? 128 I gave careful considerations to whether Ms Lane had shown cause why the Caveat should remain and the interim order stand undisturbed. I weighed in the balance the following matters. Does Ms Lane's claim have substance or raise a serious question to be tried? 129 I gave careful consideration to Ms Lane's oral submissions, the affidavits read and the written submissions prepared and relied upon by Ms Lane when considering whether her claim has substance. Joint endeavour constructive trust 130 In her first affidavit Ms Lane explained that she claims an entitlement to the Swanbourne Property as a beneficiary of a 40 KWS Capital Pty Ltd v Love [2013] WASC 294 [32] - [36]. 41 Porter v McDonald [1984] WAR 271, 276. 42 Martin v Official Trustee in Bankruptcy [1990] Tas R 65, 69; Gangemi v Gangemi [2009] WASC 195 [38] - [45]. 43 Midland Brick Company Pty Ltd v Welsh [2006] WASC 122 [342]. 44 Custom Credit Corp Ltd v Ravi Nominees Pty Ltd (50). 45 Magnolia Private Capital Pty Ltd v Floate [2022] WASC 131 [12]. -- 37 of 53 -- [2026] WASC 345 STRK J Page 38 constructive trust. A constructive trust may take (among other things) the form of a joint endeavour constructive trust or a common intention constructive trust, and it could be discerned from the submissions filed by Ms Lane on 28 July 2026 (from the submissions made as to the facts and the authorities cited) that Ms Lane pressed a claim on the basis of a joint endeavour constructive trust. 131 Ms Lane submitted that her interest in the Swanbourne Property arises by virtue of:46 (a) the joint endeavour that she and her parents had in respect to the purchase of the Swanbourne Property; (b) promises that Mr Briggs made to her that she would make the mortgage payments for the Swanbourne Property and that it would be hers in the future; (c) payments that she made to Mr Briggs in respect of the mortgage of the Swanbourne Property, which she calculated to total $550,162; and (d) payments that she made in respect of capital works performed to the Swanbourne Property. 132 Ms Lane submitted that her claim has substance and that each of the circumstances above means that equity requires her interest in the Swanbourne Property be held on trust for her.47 133 She further submitted that the matters deposed to demonstrated that the parties' objective and common intention was that:48 (a) the payments made by Ms Lane to Mr Briggs meant that the Swanbourne Property would belong to Ms Lane in the future; and/or (b) Mr Briggs would hold Ms Lane's share of the Swanbourne Property on trust to the extent of her financial contributions in respect to the Swanbourne Property. 134 Further and or alternatively, Ms Lane submitted that it would be inequitable and unconscionable for Mr and Mrs Briggs to retain the benefit of the entire ownership of the Swanbourne Property and retain 46 Plaintiff's outline of submissions filed on 28 July 2026, par 10. 47 Plaintiff's outline of submissions filed on 28 July 2026, pars 11 and 12. 48 Plaintiff's outline of submissions filed on 28 July 2026, par 14. -- 38 of 53 -- [2026] WASC 345 STRK J Page 39 the benefit of all the proceeds of sale - particularly given that Ms Lane's payments made in respect of the Swanbourne Property came to over half a million dollars.49 135 As to the authorities cited by Ms Lane, I note that in support of the interest claimed Ms Lane recorded as follows:50 The doctrines of constructive trusts were summarised by Smith J in Zorostar Pty Ltd v Arian Investments Pty Ltd [2019] WASC 415 at [38] - [40]. [38] In Baumgartner v Baumgartner,51 a majority of the High Court clarified a basis for the imposition of a constructive trust as unconscionable conduct in the form of a denial of an equitable interest in property.52 Mason CJ, Wilson and Deane JJ discussed constructive trusts, referred to Muschinski v Dodds,53 and observed:54 In Muschinski v Dodds a man and woman who had lived together for three years decided to buy a property on which to erect a prefabricated house and to restore a cottage. The woman was to provide $20,000 from the sale of her house and the man was to pay the cost of construction and improvement from $9000 he would receive on the finalisation of his divorce and from loans. The property was conveyed to them as tenants in common. Although some improvements were made by the man, the erection of the house did not proceed and the parties separated. The woman contributed $25,259.45 and the man $2,549.77 to the purchase and improvement of the property. This Court declared that the parties held their respective legal interests upon trust to repay to each his or her respective contribution and as to the residue for them both in equal shares. Deane J (with whom Mason J agreed) reached this result by applying the general equitable principle which restores to a party contributions which he or she has made to a joint endeavour which fails when the contributions have been made in circumstances in 49 Plaintiff's outline of submissions filed on 28 July 2026, par 15. 50 Plaintiff's outline of submissions filed on 28 July 2026, par 13. Footnotes added to accurately reproduce what authorities were cited in Zorostar Pty Ltd v Arian Investments Pty Ltd [2019] WASC 415. 51 Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137. 52 Ms Lane's emphasis. 53 Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583. 54 Baumgartner v Baumgartner (147 - 148). -- 39 of 53 -- [2026] WASC 345 STRK J Page 40 which it was not intended that the other party should enjoy them.55 His Honour said: '… the principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was specifically intended or specially provided that that other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do:56 cf Atwood v Maude and per Jessel MR, Lyon v Tweddell.' His Honour pointed out that the constructive trust serves as a remedy which equity imposes regardless of actual or presumed agreement or intention57 'to preclude the retention or assertion of beneficial ownership of property to the extent that such retention or assertion would be contrary to equitable principle'; see also at p 617. In rejecting the notion that a constructive trust will be imposed in accordance with idiosyncratic notions of what is just and fair his Honour acknowledged that general notions of fairness and justice are relevant to the traditional concept of unconscionable conduct, this being a concept which underlies fundamental equitable concepts and doctrines, including the constructive trust.58 (emphasis added; citations omitted) [39] In going on to impose a constructive trust in Baumgartner, their Honours applied a criterion of, and found, unconscionable conduct, arising from the appellant's assertion of sole beneficial ownership of property purchased for a joint relationship and which was financed, and contributed to, by himself and the respondent on the basis of that joint relationship.59 [40] Recently, in Currie v Currie [No 2] the Court of Appeal referred to the equitable principle which operates to impose a 55 Emphasis per Smith J in Zorostar Pty Ltd v Arian Investments Pty Ltd. 56 Ms Lane's emphasis. 57 Ms Lane's emphasis. 58 Emphasis per Smith J in Zorostar Pty Ltd v Arian Investments Pty Ltd. 59 Baumgartner v Baumgartner (149). -- 40 of 53 -- [2026] WASC 345 STRK J Page 41 constructive trust of the kind referred to in Baumgartner or Muschinski. It stipulated that '[t]here must be a joint endeavour which has as its purpose the acquisition, improvement or maintenance of the relevant property'.60 136 As to the proper approach to be taken when considering whether Ms Lane's claim for a joint endeavour constructive trust has substance, I note that in West v Mead [2003] NSWSC 161 Campbell J considered and described what is to be established before a joint endeavour constructive trust was to be imposed: first, that there be both a joint relationship or endeavour, in which expenditure is shared for the common benefit in the course of and for the purposes of which an asset is acquired (noting that the scope of the joint venture in which the parties were engaging may be of relevance and as Deane J in Muschinski v Dodds considered, may change from time to time); second, that the substratum of that joint relationship or endeavour must have been removed or the joint endeavour prematurely terminated 'without attributable blame';61 and, third, that there must be the requisite element of unconscionability (namely, that it would be unconscionable for the benefit of those monetary and non-monetary contributions to be retained by the other party to the joint endeavour).62 137 In the submissions filed on 11 August 2026, Ms Lane further addressed the establishment of a joint endeavour constructive trust in the circumstances of this case, seeking to emphasise that:63 The acquisition, improvement and maintenance of the Property was a joint endeavour between [Ms Lane] and [Mr and Mrs Briggs]. [Ms Lane] identified the Property, negotiated its purchase, funded the mortgage payments for more than eleven years and paid for capital works, on the footing that the Property would be hers. That endeavour has now broken down. It would be inequitable and unconscionable for [Mr and Mrs Briggs] to assert sole beneficial ownership and to retain the whole of the proceeds of sale, having received from [Ms Lane] $550,162 in payments up to and including 1 April 2026, and a further $7,200 between 16 April 2026 and 9 July 2026, narrated as mortgage payments. There is plainly a serious question to be tried. The claim does not rest on [Ms Lane's] assertions alone. It rests on contemporaneous bank records spanning eleven and a half years, on [Mr Briggs'] own written 60 Currie v Currie [No 2] [2019] WASCA 2 [246]; see also [212]. 61 West v Mead [52], citing Baumgartner v Baumgartner (147 - 148). 62 See Austin v Hornby [2011] NSWSC 1059 [159]. 63 Plaintiff's outline of submissions filed on 11 August 2026, pars 28 - 30. -- 41 of 53 -- [2026] WASC 345 STRK J Page 42 acknowledgments, and on the absence of any of the indicia of a tenancy. To the extent that [Mr and Mrs Briggs'] evidence conflicts with that of [Ms Lane], those conflicts are not to be resolved on this application. 138 There was strong opposition to Ms Lane's asserted claim to an interest in the Swanbourne Property. On behalf of Mr and Mrs Briggs it was submitted that Ms Lane's case, as described by her, did not support a claim for a proprietary interest in the Swanbourne Property. The submission was developed as follows:64 [Ms Lane's] constructive trust and unconscionability claims require the plaintiff to establish (as part of a serious case to be tried) a common founding intention which gave rise to the alleged joint endeavour, namely that she and the defendants would join in the acquisition of a property in which she would reside and have a beneficial interest. The involvement in such a joint involvement requires contributions to be made by both parties for the purpose of the endeavour in circumstances in which it was not intended that the other party should enjoy the other parties' contributions. The evidence in support of the alleged joint endeavour arrangement is set out in paragraph 16 to 28 of the statutory declaration lodged in support of the caveat which is attachment BSL-2 to [Ms Lane's] affidavit sworn 23 July 2026. This is flatly denied by [Mr Briggs]. [Ms Lane's] evidence is vague and incomplete, and some parts are inadmissible. Overall, the evidence is insufficient to establish a sufficient arrangement or understanding as to a joint endeavour involving the acquisition of a property in which [Ms Lane] and [Mr and Mrs Briggs] would have interest based on their contributions, as opposed to an arrangement by which [Ms Lane] and family could reside in a home to be purchased by [Mr Briggs] in consideration of [Ms Lane] making payments matching the loan repayments. The uncertainty about precisely what had been agreed in 2014 is not answered by reference to any of the subsequent communications between and conduct of the parties. There is insufficient evidence as to how the improvements funded by [Ms Lane] increased the capital value of the Property. Even if there was such evidence, this could at best give rise to an equitable interest which would not be sufficient to support an absolute caveat. 64 First and second defendants' submissions filed on 12 August 2026, pars 11 - 21 (footnotes omitted). -- 42 of 53 -- [2026] WASC 345 STRK J Page 43 The amounts paid by [Ms Lane] were occasionally narrated in the transfer as mortgage payments. This carries little weight and in any event was corrected by [Mr and Mrs Briggs]. Neither does [Ms Lane's] evidence support any other equitable interest in the Property. The things said by [Mr Briggs] in the 2014 discussion could not reasonably be taken as a representation or assurance as to [Ms Lane] having an interest in the property that might be purchased, so as to satisfy an element for a proprietary or any other estoppel. Neither does [Ms Lane's] evidence support the proposition that there was any detrimental reliance on any such assurance. 139 Counsel for Mr and Mrs Briggs suggested that the court carefully examine the language used by Ms Lane in her statutory declaration when she described the circumstances in which the Swanbourne Property was purchased. Counsel noted that a different interpretation might be given to Ms Lane's own account of her conversation with Mr Briggs (outlined at [19] of these reasons) - one which would also support a finding that what had been proposed was a rental arrangement. The very different account of events deposed to by Mr and Mrs Briggs was also emphasised. 140 I did not proceed without regard to the evidence of Mr and Mrs Briggs or the submissions made on their behalf. Their evidence, particularly that of Mr Briggs, in many respects directly contradicted Ms Lane's account. That said, in an application to extend the operation of a caveat it is not appropriate to attempt to resolve conflicts of evidence on affidavit.65 141 While acknowledging there was a very clear conflict on the evidence, and that there was room for debate as to how Ms Lane's account might be interpreted, I proceeded on the basis that the final adjudication of the same was a matter for the trial of the substantive action, not a matter to be resolved in the disposition of the caveat application. It was not appropriate for the court to undertake a preliminary trial of the action.66 142 On the evidence of Ms Lane, it was possible that at trial, unconscionable conduct may be found arising from Mr Briggs' 65 Porter v McDonald [1984] WAR 271, 276. 66 Bashford v Bashford [2008] WASC 138 [48]; applied in Simmons v Love [2014] WASC 116 [49]. See also Porter v McDonald (276), cited with approval in Kalx Capital Securities Pty Ltd v Richardson 1 Pty Ltd [No 2] [2021] WASC 302 [8]. -- 43 of 53 -- [2026] WASC 345 STRK J Page 44 assertion of sole beneficial ownership of Swanbourne Property purchased for a joint relationship which was financed, and contributed to, by Mr and Mrs Briggs and Ms Lane on the basis of that joint relationship. Her claim of a proprietary interest grounded on a joint endeavour constructive trust has or may have substance. 143 The existence of a serious question to be tried involves showing 'a sufficient likelihood of success to justify in the circumstances the preservation of the status quo' pending trial. I proceeded cognisant that how strong the likelihood of success needs to be depends upon the nature of the rights asserted and the practical consequences likely to flow from the order sought.67 I therefore weighed in the balance the strength or weakness of Ms Lane's claim, and considered that there were factors that impacted upon each. 144 There was a true contest as to whether there was in fact a joint endeavour, as deposed by Ms Lane, or if the relationship was one of lessor and lessee pursuant to a tenancy at will, as deposed by Mr Briggs and supported by Mrs Briggs. 145 The critical conversation Ms Lane deposed to occurred about 12 years ago, was not recorded in writing, and was not witnessed by anyone outside of the immediate family. Ms Lane's account of that critical conversation in the statutory declaration was not so unequivocal that it closed debate as to what was meant and conveyed. While it was arguable that there was a joint relationship or endeavour in which expenditure was shared for the common benefit in the course of and for the purposes of which an asset was acquired, that such a finding would at trial be made was not at all certain in this case. To the extent that written communications in support of the arrangement had to date been identified, they were few in number. The transfer of money on a monthly basis by Ms Lane to accounts held by Mr and Mrs Briggs were capable of being characterised as rent or mortgage payments. The descriptions given to the electronic transfers were not consistent over time. 146 That said, on balance, on the evidence presented, I was satisfied that Ms Lane's claim to an interest in the Swanbourne Property on the basis of a joint endeavour constructive trust raised a serious question to be tried and may have substance. Ms Lane had discharged her onus in this regard. 67 Perron Investments Pty Ltd v Tim Davies Landscaping Pty Ltd [42], citing Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57, 82. -- 44 of 53 -- [2026] WASC 345 STRK J Page 45 Common intention constructive trust 147 While Ms Lane referred in her submissions to the joint endeavour form of constructive trust, there was also some suggestion in Ms Lane's submissions and affidavits that she may also claim a constructive trust arising out of common intention. 148 In Ms Lane's submissions filed on 11 August 2026, under the heading 'serious question to be tried' and 'common intention', Ms Lane said as follows:68 The founding common intention was expressed by [Mr Briggs] at a meeting at Yallingup in October 2014. He told [Ms Lane] that he would arrange ownership of a property in [Mr and Mrs Briggs'] names, that [Ms Lane] would make the payments to cover the mortgage, that the property would be hers in the future, and that this was the way for her to stop renting and give stability to her children: Affidavit, statutory declaration paragraphs 16 to 28. 149 As is recorded above at [133], submissions were also made to the effect that the parties 'objective and common intention' was that Ms Lane would make payments to Mr Briggs so that the Swanbourne Property would belong to her in the future; and/or that Mr Briggs would hold Ms Lane's share of the Swanbourne Property on trust to the extent of her financial contributions to the property.69 150 While both the joint endeavour and common intention forms of constructive trust are often considered together, they are discrete forms of constructive trust and require different elements to be established as a matter of law. There is however some overlap between the elements required. It was not clear whether this distinction was appreciated by Ms Lane. As she is not represented in the proceeding, and there was the suggestion of such a claim in her submissions, I also considered whether a claim based on common intention constructive trust may have substance. 151 In order to establish a common interest constructive trust it is necessary to establish the following. First, that there is an actual or inferred common intention that the claimant has or will have a beneficial interest in the property. Secondly, that there has been detrimental reliance on the common intention by the claimant. Thirdly, 68 Plaintiff's outline of submissions filed on 11 August 2026, par 18. 69 Plaintiff's outline of submissions filed on 28 July 2026, par 14. -- 45 of 53 -- [2026] WASC 345 STRK J Page 46 that there is conduct by the trustee which would make it unconscionable to allow the trustee to resile from the common intention.70 152 On the evidence filed, it would appear that the first of the elements will be the more difficult for Ms Lane to establish. In considering whether there is a common intention constructive trust, it is necessary to look at the actual intention of the parties. Such an intention cannot be imputed. The law does not impute a presumed intention to the parties based upon what the court considers fair and reasonable persons in the position of the parties would have intended had they turned their minds to the issue.71 153 The intention may be established in various ways. There may be an agreement between the parties as to how the property should be held. There may be express statements as to their intention. However, that intention need not be expressed in a particular manner.72 Their intention may also be inferred from their conduct. The question of what acts demonstrate an agreement or common intention referable to the beneficial enjoyment of the property is one of evidence, not law.73 154 Ms Lane submitted that the common intention was evidenced in her statutory declaration which was annexed to her first affidavit (summarised at [19] of these reasons). As is recorded above at [148], she submitted that '[t]he founding common intention was expressed by [Mr Briggs] at a meeting at Yallingup in October 2014. He told [Ms Lane] that he would arrange ownership of a property in [Mr and Mrs Briggs'] names, that [Ms Lane] would make the payments to cover the mortgage, that the property would be hers in the future, and that this was the way for her to stop renting and give stability to her children …' 155 For present purposes, while I acknowledged what counsel said as to the clarity of expression, there was evidence of express statements made as to intention. Further, taking Ms Lane's evidence at its highest, there was evidence that she had understood that if she made the mortgage payments the Swanbourne Property would become hers. 70 Zekry v Zekry [2020] VSCA 336 [75], cited in Marchese v Marchese [2021] WASC 385 [139]. 71 Pettitt v Pettitt [1970] AC 777, 804, 810, 816 - 817; Gissing v Gissing [1971] AC 886, 900, 902, 905 - 909; Allen v Snyder [1977] 2 NSWLR 685, 690, 698, 701; Trajkoski v The State of Western Australia [2017] WASC 273 [27]. 72 Baumgartner v Baumgartner (1985) 2 NSWLR 406, 417 (Kirby P), 444 (Priestley JA). But see Baumgartner v Baumgartner. 73 Shepherd v Doolan [2005] NSWSC 42 [37], citing Allen v Snyder (691); Green v Green (1989) 17 NSWLR 343, 355. -- 46 of 53 -- [2026] WASC 345 STRK J Page 47 156 The particular difficulty for Ms Lane will be demonstrating that Mr Briggs shared the same intention as Ms Lane, being that upon making payments to Mr Briggs, Ms Lane would acquire a proprietary interest in the Swanbourne Property. 157 As is noted above, such intention might be found either through the express statements of Mr Briggs, or might be inferred from his conduct. However, it will not be sufficient that Ms Lane 'assumed or expected' that the Swanbourne Property would become hers, or that Mr Briggs made 'express or implied representations' as to the same.74 158 Mr Briggs denied that he shared the same intention, indeed he asserts that the common understanding was that Ms Lane was a tenant. Further borrowed the money to purchase the Swanbourne Property on an interest only basis (which would appear inconsistent with the intention sought to be attributed to him). Mr Briggs denied that he told Ms Lane, or that he knew that she understood that she would have a proprietary interest in the Swanbourne Property.75 This of course clearly differs from Ms Lane's contention, which was that Mr Briggs said that the Swanbourne Property would be 'ours' in the future.76 159 While there are likely to be difficulties in establishing such a claim, for present purposes I was satisfied that if Ms Lane indeed claims an interest in the Swanbourne Property on the basis of a common intention constructive trust (as is suggested in her papers), then a serious question to be tried has been raised and such claim may have substance. Does the balance of convenience favour the extension of the Caveat? 160 There were a number of factors to be weighed when considering the balance of convenience in the circumstances of this case. I had regard to and weighed in the balance the following. 161 First, Ms Lane had established an arguable claim to a proprietary interest in the Swanbourne Property. If the Caveat were to lapse, significant disruption to Ms Lane and her family would follow upon the removal of the Caveat. On the evidence, the Swanbourne Property (which has been Ms Lane's home for over 11 years) will transfer to a third party on 31 August 2026. These are clearly matters that support maintenance of the status quo. 74 Affidavit of BS Lane sworn on 23 July 2026, BSL-2 (statutory declaration, pars 29, 30 and 31). 75 Affidavit of AC Briggs sworn on 12 August 2026, par 12. 76 Affidavit of BS Lane sworn on 23 July 2026, BSL-2 (statutory declaration, par 27). -- 47 of 53 -- [2026] WASC 345 STRK J Page 48 162 Secondly, I had regard to the strength of Ms Lane's claim. As is recorded above, on the evidence presented, I was satisfied that Ms Lane's claim to a proprietary interest in the Swanbourne Property on the basis of a joint endeavour constructive trust, and/or a common intention constructive trust raised a serious question to be tried and may have substance. Ms Lane had discharged her onus in this regard. However, as is also recorded above, Ms Lane's claim was not without its difficulties. Among other things, there was a very clear conflict on the evidence, if accepted, and room for debate as to how Ms Lane's account of a critical conversation might be interpreted. I would not describe her claim as a strong one. 163 Thirdly, I had regard to the outcome promoted and orders sought by Mr and Mrs Briggs. They sought (as their preferred outcome) that an order to be made to bring about the removal of the Caveat; and for the court to order that at the settlement of the sale of the Swanbourne Property the balance of the proceeds of sale be retained by Mr and Mrs Briggs absolutely.77 164 The second part of relief promoted by Mr and Mrs Briggs was akin to a declaration available in a substantive proceeding concerning Ms Lane's asserted interest. It is an order beyond the scope of this proceeding. 165 In any event, Ms Lane complained that she would lose her security to obtain her entitlement to a share in the proceeds of sale because her parents would collect the entire sale proceeds.78 I considered that concern capable of being addressed by adoption of a form of order that had the net sale proceeds paid into court (as contemplated by the alternative orders promoted by Mr and Mrs Briggs).79 166 While it was plain from the papers filed that Mr and Mrs Briggs denied Ms Lane's claim, by the amended minute of proposed orders filed on behalf of Mr and Mrs Briggs, it was also clear that they did not oppose and were open to an alternative outcome which would not defeat, extinguish or destroy any interest Ms Lane might have in respect to contributions made to the purchase, maintenance or improvement of the Swanbourne Property, the net proceeds of sale, or otherwise. That was an important concession and significant consideration in the balance of convenience. 77 First and second defendants' amended minute of proposed orders filed on 17 August 2026. 78 Plaintiff's outline of submissions filed on 18 August 2026, par 4. 79 First and second defendants' amended minute of proposed orders filed on 17 August 2026. -- 48 of 53 -- [2026] WASC 345 STRK J Page 49 167 Fourthly, Ms Lane resisted the removal of the Caveat on the basis that she may be entitled to more than the net proceeds of sale of the Swanbourne Property, and that the status quo ought to remain until the extent of that interest is determined. While I do not reproduce here the submissions made by Ms Lane here in full, her submission is developed in the following passages:80 [Ms Lane] accepts that [Mr and Mrs Briggs] have now established the present Bendigo balance and a lender-issued payout amount. That evidence also demonstrates that permitting the proposed sale in its present form would immediately reduce a $2.2 million disputed property to a residual fund of approximately $944,122.68 or less before the nature and extent of [Ms Lane's] beneficial proprietary interest, and the proper equitable incidence of the $1.2 million debt, have been determined. [Ms Lane] submits that preservation only of that post mortgage residue does not adequately preserve the subject matter of her claim. … [Ms Lane's] primary position is that the [Swanbourne] Property itself should remain preserved and the proposed sale should not settle before determination of, or further order in, the substantive proceedings. The newly quantified mortgage liability demonstrates that sale would not merely substitute an equivalent cash fund for the [Swanbourne] Property. It would materially diminish the subject matter available to answer [Ms Lane's] proprietary claim before the proper equitable incidence of that indebtedness has been determined. … [Ms Lane] accordingly does not persist in any suggestion that the present lender payout has not been identified. Bendigo's priority and present discharge requirement can be recognised. That answers what the registered lender is presently entitled to receive. It does not answer the different equitable question of how that indebtedness should ultimately be borne as between [Ms Lane] and [Mr and Mrs Briggs] if [Ms Lane] establishes a beneficial interest. … [Mr and Mrs Briggs'] financing choices therefore cannot, without substantive determination and accounting, be treated as fixing the extent of [Ms Lane's] beneficial interest by simply deducting the whole present bank debt from the land value. The constructive trust authorities relied upon in the 11 August submissions, including Muschinski v 80 Plaintiff's outline of submissions filed on 18 August 2026, pars 4, 6, 11, 12 and 15. -- 49 of 53 -- [2026] WASC 345 STRK J Page 50 Dodds, Baumgartner v Baumgartner and Zorostar Pty Ltd v Arian Investments Pty Ltd, direct attention to the parties' joint endeavour, contributions and equitable consequences; they do not make the lender's internal financing structure determinative of beneficial ownership. 168 Ms Lane's submission requires there be consideration given to the relief that Ms Lane might secure from the court if she was able to establish a constructive trust, in circumstances where there is a first registered mortgage in favour of Bendigo and Adelaide Bank Limited; and to the extent that there was a joint endeavour, on the evidence it appears to have failed. 169 If an equitable remedy is ultimately granted, it will be tailored to the circumstances of the case.81 That said, the prospect of equity intervening so as to have Ms Lane retain the Swanbourne Property, unencumbered, in circumstances where Ms Lane accepts she has met less than half of the purchase price is remote (if it is available at all). On Ms Lane's own account, the arrangement was structured on the basis that she would repay the money borrowed to purchase the Swanbourne Property by way of regular mortgage payments. Ms Lane however accepts that the payments that she made (characterised as mortgage payments or otherwise) were significantly less than the amount that was borrowed to acquire the Swanbourne Property (an amount greater than $500,000, but less than half of the $1.2 million purchase price); and she has ceased making those payments. Further, it is most unlikely that equity would grant relief that would require a continuation of the joint endeavour. 170 I also note that the Swanbourne Property does not need to be retained to preserve a claim for damages in excess of the net proceeds of sale given the preservation expressly contemplated in the alternative orders promoted by Mr and Mrs Briggs. 171 Further, if Ms Lane were to secure the intervention of equity, her interest in the Swanbourne Property cannot prevail over the interest of a first registered mortgagee. On the evidence, Mr and Mrs Briggs are not willing to continue to meet the rising interest obligation under the mortgage, and it would appear that Ms Lane is not in a financial position to take on those obligations or to promptly discharge the mortgage in full from her own funds. Importantly, she has not offered to do so. If no prompt action is taken, there is a risk of ultimate bank recovery. 81 Giumelli v Giumelli (1999) 196 CLR 101, 113. -- 50 of 53 -- [2026] WASC 345 STRK J Page 51 172 While Ms Lane would no doubt be well served by the maintenance of the status quo until the substantive determination of her claim, her preferred position in the context of all of the circumstances of this case cannot readily be accommodated. 173 Fifthly, I weighed in the balance the evidence before me of the prejudice to Mr and Mrs Briggs if the operation of the Caveat were to be extended until a substantive proceeding was commenced by Ms Lane and determined. 174 There was evidence of prejudice in that they entered into a contract to sell the Swanbourne Property and, subject to its terms, may be exposed to a claim for damages if that contract is breached or if settlement is delayed (albeit they were on notice that Ms Lane opposed the sale of the Swanbourne Property and had asserted an interest in it before they entered into the contract for sale). 175 Further, there remains a very significant financial burden on Mr and Mrs Briggs in meeting the interest obligations to Bendigo and Adelaide Bank Limited in circumstances where Ms Lane has not continued to make (on her case) mortgage payments. 176 It is clear from the evidence that Mr and Mrs Briggs are not willing to continue to meet the rising interest obligation under the mortgage. On their evidence their financial situation would significantly deteriorate if they were forced to do so. 177 An order extending the operation of the Caveat would not operate to compel Mr and Mrs Briggs to meet those bank repayments, nor would they be compelled to meet the other expenses of the Swanbourne Property that they have met to date (rates, water, insurance etc). 178 On the evidence, it appears that Ms Lane is not in a financial position to take on those obligations or to promptly discharge the mortgage in full from her own funds. Again, she has not offered to do so. 179 On the evidence it appears unlikely that Mr and Mrs Briggs could secure a further interest only loan, and they cannot (and are not willing to) meet the obligations of a principal and interest loan. If there was a joint endeavour (as is Ms Lane's position) their ability and willingness to continue in the joint endeavour has been stymied by the increase in interest rates. -- 51 of 53 -- [2026] WASC 345 STRK J Page 52 180 If they do not voluntarily continue to meet the repayment obligations there is a real risk of bank recovery. 181 Sixthly, it was also relevant to consider the potential interests of third parties which may be affected by the orders sought by Ms Lane.82 In this case, the court is asked to extend the operation of the Caveat which affects the interests of Mr and Mrs Brooker. While they were not formally joined to the proceeding, the affidavit evidence of Mr Brooker is before the court. His evidence makes plain that he and his family will suffer prejudice by way of additional costs and significant inconvenience from an extension of the operation of the Caveat. I weighed their position and prejudice in the balance. 182 Ms Lane says that Mr and Mrs Brooker contracted to purchase the Swanbourne Property on notice of the Caveat. While she notes that prior knowledge 'does not make their inconvenience unreal', she submitted that it ought affect the weight to be given to the particular accommodation, storage and relocation prejudice now asserted.83 I also weighed this in the balance. 183 Finally, I weighed in the balance the operation of s 140 of the Transfer of Land Act, which provides for compensation to persons aggrieved by the wrongful lodging and maintenance of a caveat, and that Ms Lane had proffered an undertaking as to damages in the usual terms. 184 I also noted that on the evidence before the court, it appears unlikely that Ms Lane would readily be able to meet the damages that would flow from the extension of the operation of the Caveat beyond 31 August 2026. That said, while the undertaking proffered has on the evidence very little value, I proceeded on the basis that was not conclusive of the balance of convenience. It was however a matter however that weighed against the continued operation of the Caveat. 185 In the end, I did not consider that the balance of convenience favoured the maintenance of the Caveat. Ms Lane's inability to service or repay the secured debt means that upon Mr and Mrs Briggs ceasing to make payments the sale of the Swanbourne Property is inevitable. The most appropriate manner to proceed in the circumstances was therefore for the Caveat to be removed subject to an order that the net 82 As was recorded in the submissions filed on behalf of the first and second defendants on 12 August 2026, par 8, citing Hong Kong International Credit Ltd v Registrar of Titles [2012] WASC 17 [23], Wichniewicz v Registrar of Titles [2014] WASC 18 [20]. 83 Plaintiff's outline of submissions filed on 18 August 2026, par 36. -- 52 of 53 -- [2026] WASC 345 STRK J Page 53 proceeds of sale to be paid into Court pending the determination of Ms Lane's claim, on the basis that: (a) the transfer will not defeat, extinguish or destroy any interest Ms Lane might have in respect to contributions made to the purchase, maintenance or improvement of the Swanbourne Property, the net proceeds of sale, or otherwise; and (b) Ms Lane must promptly commence proceedings against Mr and Mrs Briggs to determine the extent of her claim to that money (and any additional claim she may have for damages). 186 As Mr and Mrs Briggs will be denied immediate receipt of the net proceeds of sale, prompt determination of Ms Lane's claim is still required. Ms Lane has indicated that she will be in a position to commence substantive proceedings by 15 September 2026. Conclusion and orders 187 For these reasons, orders will be made substantively in the terms of the alternative orders promoted by Mr and Mrs Briggs, with liberty to apply. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. DS Associate to the Honourable Justice Strk 19 AUGUST 2026 -- 53 of 53 --