First Trade Consulting Pty Ltd v Kirfield Limited & Anor

[2006] WASCA 174

Western Australia Court of Appeal

Built by Barristers,
For Australian Law.

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Interrogate

Catchwords

1. Real Property
2. › Caveats
3. › Extension of caveat
4. › Caveatable interest
5. › Whether builder arguably entitled to equitable lien
6. › Whether failure to apply surplus sale proceeds in reduction of mortgage debt gave rise to proprietary interest
7. › Transfer of Land Act 1893 (WA), s 138B
1. Equity
2. › Equitable lien
3. › Builder's lien
4. › Whether builder entitled to equitable lien over property on which construction work performed
5. › Whether unconscientious conduct in dealing with security gave rise to equitable lien over unsecured property

Quick Take

A builder's failure to receive payment for construction work does not, without more, give rise to an equitable lien over the property on which the work was performed. Where contractual security is confined to specified properties, a proprietor's failure to apply surplus sale proceeds from other properties in reduction of a prior mortgage does not give rise to an equitable lien or other proprietary interest in those other properties, absent an allegation of improper purpose.