Ameduri v J and K Ameduri Investments PtyLtd - [2023] WASC 483

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   AMEDURI -v- J AND K AMEDURI INVESTMENTS PTYLTD [2023] WASC 483
CORAM:   ACTING MASTER MCDONALD
HEARD:   8 JUNE 2023
DELIVERED          :   22 DECEMBER 2023
PUBLISHED           :   22 DECEMBER 2023
FILE NO/S:   CIV 1370 of 2023
BETWEEN:   MARIO AMEDURI
Applicant
AND
J AND K AMEDURI INVESTMENTS PTYLTD
Respondent

FILE NO/S: CIV 1371 of 2023
BETWEEN: MARIO AMEDURI
Applicant
AND
KARENMICHELLE AMEDURI
Respondent

Catchwords:

Caveats - Application to extend the operation of two caveats - Whether there is any proprietary interest in properties - No serious question to be tried - Turns on own facts

Legislation:

Transfer of Land Act 1893

Result:

Applications dismissed

Representation:

CIV 1370 of 2023

Counsel:

Applicant	:	In Person
Respondent	:	D Stewart

Solicitors:

Applicant	:	In Person
Respondent	:	Esteem Legal

CIV 1371 of 2023

Counsel:

Applicant	:	In Person
Respondent	:	D Stewart

Solicitors:

Applicant	:	In Person
Respondent	:	Esteem Legal

Case(s) referred to in decision(s):

Bashford v Bashford [2008] WASC 138
Bride v The Registrar of Titles [2015] WASC 11
Coco C'Bay Association (Inc). v Paddison [2022] WASC 5
Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd [1992] 8 WAR 42
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338
Jandric v Jandric [1999] WASC 22
Polaris Properties (WA) Pty Ltd as trustee for The Polaris Trust v Pickworth [2019] WASC 119 (S)
Smart v Prisoner Review Board (WA) [2012] WASC 48
Zorostar Pty Ltd v Arian Investments Pty Ltd [2016] WASC 348

ACTING MASTER MCDONALD:

The plaintiff lodged caveats against two properties. By originating summonses the plaintiff commenced two separate applications to extend the operation of the caveats. The applications were heard together. Given the facts are common to both applications it is convenient that I deal with the applications together. For the reasons that follow I have declined to extend the operation of the caveats as the plaintiff has failed to show he has any proprietary interest in the properties.

Applications

By originating summons CIV 1370 of 2023 filed on 13 April 2023 the plaintiff, Mr Mario Ameduri, brings this application under s 138C(1) of the Transfer of Land Act 1893 (WA) (TLA) for an order extending caveat P419228 which he lodged over land situated at 8 Glyde Court, Malaga (Malaga property).
By a further originating summons CIV 1371 of 2023 filed on 13 April 2023 the plaintiff seeks an order extending caveat P419229 which he lodged over land situated at 33 Swan View Terrace, Maylands (Maylands property).

Parties

Mr Mario Ameduri is the plaintiff in both actions. He is self‑represented. The principles applicable to self-represented litigants are well-known. A litigant in person should be afforded some latitude and the documents in which he articulates his case should be approached with some flexibility.[1] The court needs to be careful to ensure that if he has a case, that it is not denied because of a poorly expressed document or submission.[2] At the same time the court must ensure that any latitude given does not work an injustice to the other party.[3] I have adopted those principles at the hearing of the applications and in assessing the evidence and submissions relied upon by the plaintiff.
[1] Smart v Prisoner Review Board (WA) [2012] WASC 48 [10].
[2] Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338 [21].
[3] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10].
In CIV 1370 of 2023, the defendant, J & K Investments Pty Ltd, is an incorporated association and the registered proprietor of the Malaga property. By way of background in 2005, Ms Karen Michelle Ameduri, her husband Mr John Ameduri, who is also the plaintiff's brother and Milthorpe Nominees Pty Ltd, purchased the Malaga Property. Milthorpe Nominees Pty Ltd was the trustee of a self‑managed superannuation fund for Mr John Ameduri and Ms Karen Michelle Ameduri. In 2014, the trustee was changed to J & K Investments Pty Ltd and the title to the Malaga Property was updated accordingly.[4] Ms Karen Michelle Ameduri is also a director of J & K Investments Pty Ltd and sister-in-law to the plaintiff.
[4] Affidavit of Karen Michelle Ameduri sworn on 2 May 2023 [9], 'JKA4'.
The defendant in CIV 1371 of 2023 is Ms Karen Michelle Ameduri, who is the registered proprietor of the Maylands property.
As the parties and various key individuals have the same surname, to avoid confusion and without intending any disrespect, I will refer to those individuals by their first name in these reasons.

Evidence

Mario has filed three affidavits in support of his application to extend the caveat in relation to the Malaga property: his affidavit sworn on 1 May 2023 (Mr Ameduri's first Malaga affidavit); his affidavit sworn on 20 May 2023 (Mr Ameduri's second Malaga affidavit); and an affidavit of Darlene Barratt sworn on 1 May 2023 as to service.
Karen has sworn an affidavit on 2 May 2023 on behalf of the defendant, J & K Ameduri Investments Pty Ltd (Ms Ameduri's Malaga affidavit).
Mario relies on two affidavits in support of his application to extend the caveat in relation to the Maylands property: his affidavit sworn on 1 May 2023 (Mr Ameduri's Maylands affidavit); and an affidavit of Darlene Barratt sworn on 1 May 2023 as to service.
Karen relies on her affidavit sworn on 2 May 2023 (Ms Ameduri's Maylands affidavit).
At the directions hearing on 4 May 2023, Mario was advised that it would be useful if he could file a chronology or an outline setting out the factual basis for his claim with reference to the documents he had filed.
In response to the orders made on 4 May 2023, Mario filed his second Malaga affidavit which sets out his case. While this affidavit was only filed in CIV 1370 of 2023, it deals with both properties and the hearing proceeded on the basis that the background facts on which Mario relied were relevant to his claim in relation to both properties. For that reason I have relied on the facts outlined in Mr Ameduri's second Malaga affidavit filed in CIV 1370 of 2023 for the purpose of determining both applications.

Facts

Plaintiff's version of events

Jakobsons Way, Morley

Mario's chronology of events commences from when he was 14 years old. He is currently in his seventies. The genesis of the alleged interest in the properties that gave rise to these applications starts with the purchase of Mario's grandmother's house in Jakobsons Way, Morley. Mario states he became aware in about 1990 of his parents' intention to purchase his grandmother's house. The certificate of title shows that a Mr Vincenzo Ameduri, as executor of the will of Ms Teresa Bernadina Orbello,[5] transferred the property to Mario, John and Mario's sister-in-law, Tina, on 6 July 1990 as tenants in common in equal shares.[6]
[5] Ms Orbello is Mario's and John's grandmother and Mr Vincenzo Ameduri is Mario's uncle and the executor of Ms Orbello's estate (ts 10).
[6] Mr Ameduri's first Malaga affidavit, Att 3.
Mario claims he was unaware that the house had been bought and sold or that he was on the certificate of title as tenants in common with his brother, John and Tina until 2020, after the passing of his mother.[7]
[7] Mr Ameduri's second Malaga affidavit [30], [51].
The transfer of the house dated 4 October 1990 is purportedly signed by John, Tina and Mario,[8] but Mario denies that he signed any such document.[9] Further, Mario refers to the various mortgages and loans which were taken out against the property, being:
·Mortgage E814019 to secure $25,000 on 24 October 1990 (Commonwealth Bank);
·Mortgage E814019 extended to secure a further $10,000 dated 19 February 1992 (Commonwealth Bank);[10]
·Mortgage F2900 to secure $40,000 dated 21 August 1992 (Westpac Bank);[11]
·Mortgage F335806 to secure $36,000 dated 21 September 1993 (Westpac Bank).[12]
[8] Mr Ameduri's first Malaga affidavit, Att 3; ts 43.
[9] Mr Ameduri's second Malaga affidavit [53]; ts 3.
[10] Mr Ameduri's first Malaga affidavit, Att 4.
[11] Mr Ameduri's first Malaga affidavit, Att 5.
[12] Mr Ameduri's first Malaga affidavit, Att 6.
Despite Mario's signature appearing as mortgagor on the mortgage documents, Mario denies the documents were signed by him.[13]
[13] Mr Ameduri's second Malaga affidavit [53]; ts 13.
The Jakobsons Way property was sold in 1995 for $135,000.[14] Mario states he made no contribution to the purchase of his grandmother's house or to the mortgage payments.[15] He also made no improvements to the house. He could not have as he says he only became aware of the purchase and sale of his grandmother's house and the mortgages in 2020. Mario claims he is entitled to one third of the proceeds of the sale of the house being $45,000[16] plus interest. Mario alleges that his brother John loaned money against the property and received all the proceeds of the sale of the house when it was sold in 1995, save for $10,000 which John gave to his brother Gino.[17]
[14] Mr Ameduri's first Malaga affidavit, Att 7.
[15] Mr Ameduri's second Malaga affidavit [53]; ts 28.
[16] ts 11.
[17] Mr Ameduri's second Malaga affidavit [52]; ts 22.
Upon Mario discovering that various loans had been taken out against the Jakobsons Way property purportedly using his signature, he made a complaint to the police.[18]

Restaurant and hamburger businesses

[18] ts 13.

Mario further deposes that in 1992 he decided to open a hamburger place in Perth, called Smokey's. Mario claims he did the fit out himself without requiring any finance.[19] He invited his brother John to be his partner, to attend to the paperwork and banking.[20] His brother John banked the proceeds from the sales.[21] Mario's view is that the business was very successful.
[19] Mr Ameduri's second Malaga affidavit [31] where it appears the second time.
[20] Mr Ameduri's second Malaga affidavit [32].
[21] Mr Ameduri's second Malaga affidavit [34].
In 1993, Mario opened a restaurant in a vacant showroom near Smokey's to avoid the vacant premises being occupied by a business that could potentially compete with Smokey's.[22] Mario says he supplied the labour for the fit out and supplied most of the materials. The restaurant was called Copper Canyon. Cash from Smokey's was used for the tiles and electrical work only.[23] The premises for both businesses were subject to leases and John paid the rent.[24] Mario deposes that both Smokey's and Copper Canyon were very successful.[25] Mario claims he took no money from businesses.[26] Mario has no documents evidencing the turnover of the businesses.[27]
[22] Mr Ameduri's second Malaga affidavit [35].
[23] Mr Ameduri's second Malaga affidavit [35].
[24] ts 7.
[25] Mr Ameduri's second Malaga affidavit [37].
[26] Mr Ameduri's second Malaga affidavit [34]; ts 8.
[27] ts 5.
For personal reasons, Mario had no contact with his family and the businesses between Christmas 1994 and 2005.[28] After 10 years he reunited with his family and was advised that John had swapped the businesses for some land.[29]
[28] Mr Ameduri's second Malaga affidavit [38] - [39].
[29] Mr Ameduri's second Malaga affidavit [39].
Mario claims that he was owed a half-share of the businesses.[30] Despite a 10-year absence, Mario assumes there were no debts owing on the basis of its success while he was there.[31]
[30] Mr Ameduri's second Malaga Affidavit [39], 'JKA2'.
[31] ts 9.
In summary, Mario's claim is that John and/or Karen took Mario's share of the proceeds of the sale of the grandmother's house to which Mario claims he was entitled to a third as well as his half the proceeds from the sale of the businesses. Those funds, Mario assumes, were appropriated by John and/or Karen, to build a property portfolio which ultimately facilitated the purchase of the Malaga and Maylands properties.

Defendants' version of events

The account of events given by Karen differs significantly from that of Mario. In 2005, Karen, John and Milthorpe Nominees Pty Ltd purchased the Malaga Property.[32] As stated above, Milthorpe Nominees Pty Ltd was, at the relevant time, the trustee for a self‑managed superannuation fund belonging to John and Karen. In 2014 the trustee was changed to J & K Investments Pty Ltd.[33]

Restaurant/hamburger businesses

[32] Ms Ameduri's Malaga affidavit [6].

[33] Ms Ameduri's Malaga affidavit [9] - [10], 'JKA4', 'JKA5'.

Karen deposes that Mario has never had any financial or other involvement with the Malaga property. He has not contributed to its purchase, maintenance or improvement.[34] According to Karen, the purchase of the Malaga property has no connection with John and Karen's earlier business relationship with Mario which ceased in 1995.[35] The business was owned by RIAD Pty Ltd as trustee for the Smokey's Unit Trust and units in the Smokey's Unit Trust were held by family trusts. Mario's family trust held a 65% share of the business. The unit Trust Deed is attached to Karen's affidavit and appears to have been signed by Mario.[36]
[34] Ms Ameduri's Malaga affidavit [11].
[35] Ms Ameduri's Malaga affidavit [13].
[36] Ms Ameduri's Malaga affidavit [17] - [19], 'JKA6'.
According to Karen, the businesses were a failure. The 1994 Annual Return of RIAD Pty Ltd shows the liabilities exceeded assets and that the operating losses were $13,991 after income tax.[37] On 9 March 1995 Mario resigned as director of RIAD Pty Ltd and transferred his interest of 65 units to Milthorpe Nominees Pty Ltd as trustee for the J & K Ameduri Family Trust. The transfer was purportedly signed by Mario and his ex-wife. The papers were prepared by the firm Ernst and Young.[38]
[37] Ms Ameduri's Malaga affidavit [20] 'JKA7'.
[38] Ms Ameduri's Malaga affidavit [22] - [23], [28], 'JKA8', 'JKA9'.
Karen claims Mario walked away from the businesses in late 1994 or early 1995.[39] In 1995 Karen and John sold the businesses for what they could get for its assets, but the Smokey Unit Trust debts exceeded the value of its assets.[40] Karen states Mario did not help pay any of the creditors, but Karen and John had to make payment arrangements with many of the creditors as they had given personal guarantees.[41] Part of the sale arrangements involved a land swap with a block of land in Woodridge which was placed in their personal names which they then sold in 1997.[42] There was nothing left over from the sale of the business and the proceeds from the sale of the Woodridge land in 1997 went to reimbursing Karen and John for the payments they made personally to creditors on behalf of the Smokey Unit Trust.[43]

Jakobsons Way property

[39] Ms Ameduri's Malaga affidavit [21].

[40] Ms Ameduri's Malaga affidavit [25].

[41] Ms Ameduri's Malaga affidavit [24].

[42] Ms Ameduri's Malaga affidavit [26].

[43] Ms Ameduri's Malaga affidavit [27].

In relation to the Jakobsons Way property, the sale transfer of that house is dated 9 March 1995, the same date as Mario's resignation from RIAD Pty Ltd. Karen deposes that John does not recall receiving any money from the sale of the property and says it is possible the sale proceeds went towards paying down some of the debts of the business.[44]
[44] Ms Ameduri's Malaga affidavit [35], 'JKA11' (75).
The defendants point to the fact that Mario's signature is on the transfer of land documents as transferee in the presence of a witness.[45] Mario's signature is also on the mortgage E814019 with Mario identified as the requesting mortgagor.[46] Mario's signature also appears on the mortgage F2900 in the presence of a Ms Tia Marie German who is described as a bank officer.[47] Mario's signature is also on the Mortgage F335806 in his capacity as director of RIAD Pty Ltd in the presence of a Mr Larry Kenneth Scott also described as a bank officer.[48] The transfer of land document effecting the sale of the Jakobsons Way property in 1995 for $135,000 also bears Mario's signature made in the presence of a Mr/Ms Fitzgerald, Commissioner for Declarations.[49]
[45] Ms Ameduri's Malaga affidavit [31], 'JKA11' (75); ts 43 - 44.
[46] Ms Ameduri's Malaga affidavit [33], 'JKA11' (63).
[47] Ms Ameduri's Malaga affidavit 'JKA11' (65 - 68).
[48] Ms Ameduri's Malaga affidavit 'JKA11' (69 - 72).
[49] Ms Ameduri's Malaga affidavit 'JKA11' (73 - 76).
In relation to the Maylands property, Karen purchased that property in 2010.[50] The funds used to purchase the Maylands property came from the sale of a property owned by John and Karen in Noranda and from borrowed funds.[51] According to Karen, Mario has made no financial contribution to the Maylands property, nor has he paid for any improvements to the property.[52]

Plaintiff's response

[50] Ms Ameduri's Maylands affidavit [4].

[51] Ms Ameduri's Maylands affidavit [5].

[52] Ms Ameduri's Maylands affidavit [6].

Mario claims his ex-wife and Karen were never involved in the restaurant businesses. Mario claims he was appointed director of RIAD Pty Ltd without his knowledge, and that there were no trust accounts or creditors of the businesses as they were cash only.[53] Mario claims the land swap of the Woodridge property for the businesses shows the businesses had value.[54]

Caveat and statutory declarations

[53] Mr Ameduri's second Malaga affidavit, [56] - [57].

[54] Mr Ameduri's second Malaga affidavit, [61].

The statutory declarations filed in support of the caveats lodged over the properties are difficult to decipher.
In relation to the Malaga property, Mario claims in his statutory declaration that he is the beneficial co-owner. In 2005 when Mario returned to his family his parents told him John had swapped the restaurant for land which he and Mario owned '50/50'. In 2020 when his mother died, he became aware that his name was on the title of his grandmother's house and he had not received any proceeds from its sale. On conducting a search of the Malaga property he notes that there is no mortgage on the land and he claims a half share in the property.[55]
[55] Ms Ameduri's Malaga affidavit 'JKA1' (9).
In relation to the caveat filed in respect of the Maylands property Mario states in his statutory declaration:
The land is owned by Karen Michelle Ameduri Lot 20 on Diagram 28861 whole Volume 1299 Folio 69. I claim [to be] a person who is to receive [a] portion of the proceeds of land upon sale. John frauded my signature to obtain money from the Commonwealth Bank ($25,000 & $10,000) Westpac ($40,000) Westpac ($36,000) as well [as] all cash money from Smokey Hamburger and Restaurant Copper Canyon. I only had 1/3 share in house. 1995 he sold house for $135,000 paid out bank $111,000 and split money with my other brother Gino. I only found out this in 2020 when I did a search of Banks and Landgate when my sister told me.[56]
[56] Ms Ameduri's Maylands affidavit 'KMA1' (7).
Mario goes on to claim a third share in the Jakobsons Way property plus interest and alleges fraud and states he has reported the matter to the police.[57]
[57] Ms Ameduri's Maylands affidavit 'KMA1' (8).

Legal principles

Section 137 of the TLA enables a person claiming an estate or interest in land to lodge a caveat. Section 138B provides a mechanism whereby the proprietor of land over which a caveat has been lodged can require the caveator to justify the maintenance of the caveat by an application to the Supreme Court under s 138C of the TLA.[58]
[58] Coco C'Bay Association (Inc). v Paddison [2022] WASC 5 [26].
The principles applicable to an application under s 138C of the TLA to extend the operation of a caveat are well established.[59] The principles were summarised by Edelman J in Bride v The Registrar of Titles [2015] WASC 11as follows:
[59] Bashford v Bashford [2008] WASC 138 [42] - [46]; Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd [1992] 8 WAR 42, (44 - 45), (48 - 50).
Section 138C(2) provides for the Supreme Court's powers when a caveator applies to the Supreme Court for an order extending the operation of a caveat, as follows:
(2)On the hearing of an application under subsection (1), the Supreme Court -
(a)if satisfied that the caveator's claim has or may have substance -
(i)may make an order extending the operation of the caveat for such period as is specified in the order; or
(ii)may make an order extending the operation of the caveat until the further order of the court; or
(iii)may make such other orders as it thinks fit concerning the caveat or the land in respect of which the caveat was lodged;
and
(b)if not satisfied that the caveator's claim has or may have substance, shall dismiss the application; and
(c)may make such ancillary orders in relation to the application as it thinks fit.
In assessing whether to grant the extension of the caveat the two broad issues are (1) whether the caveator's claim in respect of the estate or interest in land 'has or may have substance' and (2), whether the balance of convenience favours the retention of the caveat and the appropriate orders to be made.
The first issue is whether the caveator's claim in respect of the estate or interest in land 'has or may have substance'. This is sometimes expressed as whether the caveator can show that there is a serious question to be tried, or whether the caveator can prove a prima facie case. In assessing whether the caveator has proved that the claim has, or may have substance, the court does not ordinarily evaluate the applicant's evidence or undertake a preliminary trial.
The requirement that the caveator's claim of substance be in respect of a claim of an 'estate or interest in land' has been held to mean that the claim must concern a proprietary interest in land.
The second issue is the balance of convenience in extending the caveat. The court considers the balance of convenience when it decides whether to exercise its discretion to extend the caveat. The balance of convenience is not independent of the strength or weakness of the caveator's claim. Rather, the apparent strength or weakness of the case for relief at trial is a relevant consideration on the balance of convenience.
An important factor in considering the balance of convenience is if the failure to extend a caveat will have the effect of destroying, or substantially impairing, the benefit of the proprietary interest which is claimed.[60] (footnotes omitted)
[60] Bride v The Registrar of Titles [11] - [16].

In Jandric v Jandric [1999] WASC 22 Commissioner Buss QC (as he then was) stated in relation to whether there is a serious question to be tried:
As I have mentioned previously, the plaintiff must demonstrate on the evidence that his claim to a caveatable interest in the Land raises a serious question to be tried. If there is a serious question to be tried, the question will not, except in the most exceptional circumstances, be determined on originating summons. See Porter v McDonald [1984] WAR 271 at 276; Halse v Embling, unreported; FCt SCt of WA; Library No 970734; 22 December 1997. It is not appropriate to attempt to resolve conflicts of evidence on affidavit. See Eng Mee Yong (supra) at 341; Halse (supra) per Parker J at p4. As Brinsden J observed in Deputy Commissioner of Taxation v Corwest Management Pty Ltd [1978] WAR 129 at 141:
"… the jurisdiction granted by s138 should not be exercised so as to remove a caveat unless the case is one in which it is patently clear that the estate or interest sought to be protected cannot be made out and that degree of clarity will not emerge if there are disputed questions of fact, when the respondent should be left to proceed by way of action to establish the claimed interest or estate."
Accordingly, if a caveator is able to demonstrate a reasonably arguable case as to the existence of a caveatable interest, the ordinary course is for the caveat to remain and the disputed question to be left for trial by writ of summons with pleadings. However, a caveator's claim must, in fact and law, be more than merely frivolous or vexatious, and it must appear from the evidence on the originating summons that the caveator might ultimately succeed in establishing his caveatable interest. See Halse (supra) per Parker J at p14.[61]
[61] Jandric v Jandric [1999] WASC 22 [24] - [25].
I have adopted and applied these principles in determining the plaintiff's application.

Disposition

A caveatable interest must be a proprietary interest in land,[62] not a mere contractual or personal right. In assessing whether the caveator's claim may have substance, the court does not ordinarily evaluate the applicant's evidence or undertake a preliminary trial. Further, in determining the plaintiff's claim, it is not appropriate to resolve conflicts of evidence on affidavit.[63]
[62] Custom Credit Corporation Limited v Ravi Nominees Pty ltd (50); Bride v The Registrar of Titles [14].
[63] Zorostar Pty Ltd v Arian Investments Pty Ltd [2016] WASC 348 [31] citing Porter v McDonald [1984] 271, 276.
Mario's claim is that there has been a failure to account in respect of the proceeds of the sale of the Jakobsons Way property and for the sale of the businesses comprising of Smokey's and Copper Canyon. Mario claims he was entitled to proceeds from these sales, and those funds that were rightfully his, were used by the defendants to make property purchases, that ultimately facilitated the purchases of the Malaga property and the Maylands property. Mario's claim is one of debt or conversion in that he was defrauded out of the proceeds of the sales through the alleged forgery of signatures on mortgage and transfer documents.
The affidavits that have been filed reveal material differences in relation to the facts. The defendants produced documents which support their evidence. Mario's evidence is largely by way of assertion and he was unable to produce documents or particulars that support the facts upon which his claim is based.
The difficulty with assessing Mario's claim in relation to the proceeds of the sale of the business is that by his own admission, he was absent during the period when the business was sold. Mario's evidence is that he assumes the business was profitable based on his experience working there in 1993 and 1994 but admits that even while he was present in the business his brother John attended to all the paperwork and banking. He claims that he took no money from the business. He can produce no evidence that his assumptions as to its profitability were correct. Due to Mario's absence from the business, his assertions as to its profitability are largely speculation and not supported by the evidentiary material filed by the defendants.
Against Mario's evidence are returns lodged with ASIC that show that at least at the end of 1994 the business was running at a loss. There are documents, ostensibly prepared by Ernst and Young, that transfers Mario's interest in the business in March 1995 to Milthorpe Nominees Pty Ltd as trustee for the J & K Ameduri Family Trust. The document is purportedly signed by Mario. At that point any interest Mario had in the business would have ceased.
In relation to the Jakobsons Way property it is not possible to resolve the varying accounts on the evidence. Mario claims he was not involved in the purchase or sale of the property, nor did he have any knowledge of the mortgages taken out against the property. He claims he first learned of his interest in the property in 2020. His complaint to the police about the alleged forgery of signatures does not appear to have yet led to any action.
However, these matters especially in relation to the allegations of forgery, are not able to be determined upon this application.
What is not in dispute is that the Jakobsons Way property sold for $135,000 in 1995 and was subject to a number of mortgages which in accordance with their stamped value amounted to $111,000. While it is not known what was owing at the time of settlement, the evidence does accord with the defendants' claim that there were minimal proceeds to distribute on settlement.
I am not satisfied that there is a serious question to be tried or that Mario's claim of caveatable interest in either property has substance. First, Mario does not appear to have brought any action against the defendants in addition to these caveat proceedings in relation to his claims.
Secondly, there is no evidence to support the assertions made. To the contrary the documentary evidence supports the fact that Mario was an active participant in the various dealings relating to the transfer of the Jakobsons Way property and his resignation from the businesses. While these issues need not be resolved on this application, a bare denial of the facts put against him does not give rise to a reasonably arguable case as to the existence of a caveatable interest.
Thirdly, even accepting the evidence filed by Mario, there is simply no evidential basis to connect the proceeds from the sale of the businesses or the sale of the Jakobsons Way property, both in 1995, with the acquisition of the Malaga property in 2005. In any event, having been advised in 2005 of the sale of the businesses, any action to claim an interest in any asset following that sale is likely to be statute-barred.
Similarly, there is no evidence to connect any entitlement to the proceeds of the sale of the Jakobsons Way property and the businesses in 1995, with the purchase of the Maylands property in 2010. A further difficulty arises in relation to the Maylands property in that it is owned by Karen. Her title to the Maylands property is indefeasible. Karen was neither a director of RIAD Pty Ltd nor a registered proprietor of the Jakobsons Way property. Mario's allegations of fraud relate to signatures pertaining to the transfer and sale of the Jakobsons Way property and the associated mortgages, and not in relation to the registration of the Maylands property.
Mario has not shown that he has contributed to the purchase of the properties or their acquisition, their improvement or to the development of other later business interests of the defendants.
There is no proprietary interest capable of being left unprotected by the removal of the caveats. For the reasons stated there is no obligation on the defendants to account to the caveator from the proceeds of any sale of the Malaga or Maylands properties. If the plaintiff has some form of claim in debt, conversion or fraud it is not one that gives him a proprietary interest in either of the properties.
As I have determined that Mario's claim has no substance I need not determine if the balance of convenience favours the exercise of discretion to extend the caveats.

Costs

The defendants seek orders that costs be ordered against the plaintiff on an indemnity basis. On 9 December 2021 the defendants' lawyers wrote to the plaintiff's lawyers stating that the plaintiff's allegations do not accord with the documentary evidence and the fact that the plaintiff has raised these matters that occurred 26 years ago when records are no longer available. If pursued the defendants foreshadowed they would be seeking indemnity costs.[64]
[64] Ms Ameduri's Maylands affidavit 'KMA2' (9).
The principles applicable to the award of indemnity costs are well-established. In Polaris Properties (WA) Pty Ltd as trustee for The Polaris Trust v Pickworth [2019] WASC 119 (S) Smith J summarised those principles as follows:
Legal principles - indemnity costs.
In Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd, Woodward J observed that an award of indemnity costs is appropriate where the action 'has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success'.
In Civil Properties Pty Ltd v Miluc Pty Ltd, Newnes JA set out the principles for assessing whether an award of indemnity costs should be made on grounds that a party brought a hopeless case. His Honour said:
It is well-established that a court has a wide discretion as to costs (albeit, a discretion to be exercised judicially) and that an appellate court will be slow to interfere with the exercise of that discretion. Whether or not an order for indemnity costs is appropriate must depend upon the facts of the particular case. There are not, and cannot be, any hard and fast rules. But an indemnity costs order is a departure from the usual order that costs are awarded on a party and party basis. Ordinarily an indemnity costs order is appropriate only where the unsuccessful party has been involved in some unreasonable conduct in relation to the proceedings, such as where the institution or continuation of the proceeding was plainly unreasonable or the proceeding was issued or maintained for an ulterior or collateral purpose: see Rosniak v Government Insurance Office (1997) 41 NSWLR 608, 616; PCRZ Investments Pty Ltd v National Golf Holdings Ltd [2002] VSCA 24 [36]. An order for indemnity costs reflects the court's disapproval of the conduct of the unsuccessful party: Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95 [25].
If a party brings a case which is hopeless it can normally be inferred that the proceeding was commenced or continued 'for some ulterior motive or because of some wilful disregard of the known facts or the clearly established law': Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397, 401. But it is not necessary that such an inference be drawn; it is sufficient that the court's resources and the successful party's costs have been wasted on entirely frivolous litigation: Re SCA Properties Pty Ltd (in liq) [1999] QSC 180; (1999) 17 ACLC 1611 [70].
In Woodley v Woodley, Allanson J applied these principles to an application for indemnity costs against a self-represented litigant. In this context, Allanson J added to the principles considered by Newnes JA by making the following observations:
I interpose that, with a litigant in person, the inference that a hopeless case was commenced for an ulterior motive may not always be the case. The facts leading to that inference may be countered by the lack of legal knowledge and training and, importantly, objectivity of a litigant in person. Returning to what Justice Newnes said:
'However, while indemnity costs may be awarded where an action has been commenced or continued in circumstances where the plaintiff, properly advised, should have known that the action had no prospect of success, a court must not be too ready to find that a case was hopeless.'
His Honour then quoted the passage from Quancorp Pty Ltd v MacDonald. Mr Woodley referred to it in his submissions. In particular, it is inappropriate that a case be too readily characterised as hopeless so as to justify an award of indemnity costs. And Newnes J concluded:
'It must also be borne in mind that what is apparent at the end of a trial may not have been so obvious beforehand. Whether or not a case was hopeless is not to be determined with the benefit of hindsight.'
Turning then to my findings in the present matter, they are these. The plaintiff represented himself, and it is necessary to make some allowances. In part, a litigant in person cannot bring the objectivity to bear of an impartial legal practitioner. It is not just a matter of expertise or legal knowledge, but it is a matter of being too close to the subject matter of the proceedings and lacking the necessary objectivity to make sound judgments. (footnotes omitted).
The plaintiff was unable to put before the court any document that the defendants in either action profited from the sale of the businesses or the sale of the Jakobsons Way property. The basis of the claim is based on assertion and speculation that the businesses were profitable and that there were proceeds from the grandmother's house to distribute. If there was a cause of action against either defendant in 1995 for the use of these proceeds rightfully owed to the plaintiff, there is nothing to connect these proceeds with the purchase of the Malaga property in 2005. Similarly, there is no evidence that any proceeds were used by Karen to purchase the Maylands property 15 years later.
The plaintiff was put on notice well before the commencement of this action by the solicitors for the defendants that his claims were not supported by the documentary evidence. In fact, not only were the plaintiff's claims not supported by the documentary evidence, but the documents also support the fact the plaintiff was an active participant in the various dealings. While that issue does not need to be determined, it should have informed the plaintiff that something more than mere assertion would be required to show his claims had any substance.
Further, given the events complained of occurred over 27 years ago, records evidencing the manner of distribution of the proceeds of the sale are no longer available nor complete. It must have been obvious and if not, should have been, that in choosing to wait some 27 years before bringing any action, in relation to the events in question without any supporting documentary evidence to substantiate his claim, that Mario's case had no chance of success.
This is not a matter where the hopeless nature of the case can be ascertained with the benefit of hindsight. I have taken into account that the plaintiff is self-represented but the problems with his case were brought to his attention and he proceeded in any event.
For these reasons I will make an order for indemnity costs in the usual terms.

Orders

In action CIV 1370 of 2023 I propose to make the following orders:
1.The plaintiff's application be dismissed.
2.The order made on 8 June 2023 that Caveat P419228 over 8 Glyde Street Malaga be extended until further order of the Court is set aside from the date of these orders.
3.The plaintiff pay the defendant's costs on an indemnity basis, except insofar as they are of unreasonable amount or have been unreasonably incurred, to be taxed if not agreed.
In action CIV 1371 of 2023 I propose to make the following orders:
1.The plaintiff's application be dismissed.
2.The order made on 8 June 2023 that Caveat P419229 over 33 Swan View Terrace Maylands be extended until further order of the court, is set aside from the date of these orders.
3.The plaintiff pay the defendant's costs on an indemnity basis, except insofar as they are of unreasonable amount or have been unreasonably incurred, to be taxed if not agreed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TM
Associate to Acting Master McDonald
22 DECEMBER 2023