Casella v Casella

[2011] WASC 153

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   CASELLA -v- CASELLA [2011] WASC 153

CORAM:   LE MIERE J

HEARD:   16 FEBRUARY 2011

DELIVERED          :   10 JUNE 2011

FILE NO/S:   CIV 1056 of 2010

BETWEEN:   MARIA NUNZIATA CASELLA

First Plaintiff

NICOLINO CASELLA
Second Plaintiff

AND

GIUSEPPINA CASELLA
Defendant

Catchwords:

Practice and procedure - Application for summary judgment - Leave to bring application out of time - Whether defendant has good defence on the merits - Turns on own facts

Legislation:

Transfer of Land Act 1893 (WA), s 138B, s 138C

Result:

Application granted

Category:    B

Representation:

Counsel:

First Plaintiff                :     Mr P Redding

Second Plaintiff            :     Mr P Redding

Defendant:     Mr L Chiat

Solicitors:

First Plaintiff                :     Redding & Associates

Second Plaintiff            :     Redding & Associates

Defendant:     Irdi Legal

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

In the Will of Wilson (1897) 23 VLR 197

Legione v Hateley (1983) 152 CLR 406

Timbury v Coffee (1941) 66 CLR 277

1. LE MIERE J:  The first plaintiff (Nancy), the second plaintiff (Nic) and the first defendant (Josie) are three of the four children of the late Santina Cassella (Santina) who died on 24 June 2009.  Santina had a fourth child, Dominic Cassella, who takes no part in these proceedings.  Until July 1998 Santina was the registered proprietor of the property at 31 Clarence Street, Mount Lawley (the Land).  On 3 July 1998 Santina and Josie executed a deed of gift by which Santina gifted to Josie an estate in remainder of the Land expectant on her death.  On the same date Santina executed a transfer of the Land to Josie of an estate in fee simple in remainder expectant upon Santina's death (the Transfer).  On 23 July 1998 the Transfer was registered and thereafter Santina held an estate for life and Josie an estate in fee simple in remainder expectant upon the death of Santina.  On 11 June 1998 Santina executed a will (the Will).  She appointed Josie executrix and trustee of her will and gave the whole of her estate to Josie.

2. On 2 October 2009 Nic lodged a caveat over the Land.  The estate or interest claimed by Nic was:

   Equitable interest in the Land arising from being a child of the deceased former registered proprietor and arising from a prior mutual understanding and agreement between the deceased former registered proprietor and the caveator whereby the caveator was to be granted a share of the Land upon the death of the former registered proprietor.

3. On 6 October 2009 Nancy lodged a caveat over the Land.  The estate or interest claimed by Nancy was:

   Equitable interest in the Land, arising from being a child of the deceased former registered proprietor arising from a mutual understanding and agreement between the former registered proprietor and the caveator that half the Land would be transferred to me at the time of her death.  The registered proprietor holds the Land as trustee for herself and myself.

4. On 12 November 2009 the Registrar of Titles sent each of Nancy and Nic a notice under s 138B of the Transfer of Land Act 1893 (WA) (TLA). On 27 November 2009 the plaintiffs commenced proceedings by originating summons seeking an order pursuant to the provisions of s 138C of the TLA that the caveats be extended until further order. On 3 December 2009 I ordered that the caveats be extended until further order.

5. On 14 January 2010 the plaintiffs commenced the current proceedings against the defendant by writ of summons.  Each of the plaintiffs claims an equitable interest in the Land held by Josie as registered proprietor.  The plaintiffs also claim that the Will, the Deed of Gift and the Transfer are void and of no effect and/or are unenforceable by virtue of Santina not having the necessary capacity to make those documents at the time they were made or alternatively are unenforceable as having been unconscionably procured in consequence of the relationship of Santina and Josie.

6. On 26 July 2010 the defendant applied by chamber summons for summary judgment and for leave to bring the application out of time.

Leave to bring application out of time

1. The defendant applies for leave to bring this application out of time.  In [26] ‑ [37] of her affidavit sworn 14 July 2010 the defendant explains the delay in bringing this application.  The plaintiffs do not oppose leave to bring the application out of time.  I am satisfied that it is appropriate to grant leave and I will do so.

Summary judgment principles

1. The court may order that judgment be entered for the defendant if satisfied that the action is frivolous or vexatious, that the defendant has a good defence on the merits or that the action should be disposed of summarily.  The legal onus is and remains on the defendant to show that there is no serious question to be tried on any cause of action raised by the plaintiff.  The power to order summary judgment should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.

Plaintiffs' claim to equitable interest

1. The plaintiffs each submit that they are able to demonstrate a reasonably arguable case as to the existence of equitable estoppel and a resulting or constructive trust.  The plaintiffs submit that the elements of equitable estoppel for present purposes may be summarised as follows:

   1.In relation to the plaintiffs' conduct ‑ they acted (or abstained from acting) in reliance upon an assumption or expectation that a particular legal relationship existed or it existed between them and Santina, or that they each had or would acquire some interest in the Land.

   2.In relation to the defendants' conduct ‑ the defendant induced the plaintiffs to adopt the assumption or expectation and encouraged the reliant activities of the plaintiffs, or at least failed to deny the assumption or expectation with knowledge that they were relying on it to their potential detriment and that it could be fulfilled only by transfer of the Land.

   3.In relation to the Land ‑ that the assumption or expectation was one which the defendant could lawfully satisfy.

   The plaintiffs submit that they believed and expected that they would each inherit a one‑quarter interest in the Land and upon the faith of that belief or expectation acted to their detriment by working for Santina in carrying out work for Mr Astone.

Nic's claims

1. There are numerous difficulties confronting the plaintiffs' case based on estoppel or unconscionability.  One of those difficulties is that the conduct relied upon to give rise to the estoppel was conduct by Santina.  The Land was transferred to Josie more than six years ago.  However, it is not necessary to consider those matters because I am satisfied that the matters relied upon by the plaintiffs do not provide an arguable case of estoppel or unconscionability arising from the conduct of Josie or Santina.

2. An estoppel occurs where a person induces an assumption in another by express or implied representation, which is relied on by that other to his or her detriment.  The representation must be assessed by how it would reasonably be understood by the recipient in the circumstances.  To found an estoppel a representation, whether by words or conduct, must be clear and unambiguous:  Legione v Hateley (1983) 152 CLR 406, 435 (Mason & Deane JJ). The representation must be construed as a whole and in context.

3. In his affidavit sworn 27 November 2009 Nic swears that Santina told him on many occasions over a period of many years that:

   When I pass away, I will be giving the two girls (Josie and Nancy) an equal share of the house and the two boys (Dominic and you) equal share of the money held in my bank account.

   Nic says that Santina told him this on many occasions in the period from in or about 1990 to as late as 2009 and that Santina told him that:

   This is to repay you for all the money you had worked for and not received and which I used in purchasing the house.

   Nic says that on occasions Santina said to him that:

   I cannot pay you any money.  I do not have it.  I will give you half this house when I die.  You will get your share of this house.

4. When the evidence contained in Nic's affidavit is taken as a whole it is insufficient to raise an estoppel based upon a representation that he would receive a half interest in the Land, a quarter interest in the Land or any interest in the Land.  If Nic's evidence is accepted in full it is incapable of giving rise to a case in estoppel or unconscionability.  On Nic's evidence there is no sufficiently clear representation by Santina that Nic would be left a half interest, quarter interest, or any interest in the Land.  Nic's evidence is that Santina told him on many occasions over a period of many years that he would receive a share of the money held in her bank account.

5. Detrimental reliance on the assumption is essential for a claim of estoppel to succeed.  There is no evidence that Nic voluntarily carried out any work for Mr Astone, for which Santina received reward, in reliance upon any representation or assumption that he would receive an interest in the Land.  To the contrary, Nic's evidence is that he carried out the work involuntarily:

   I worked for many years for a man named Antonino Astone.  I knew then that Santina worked for Mr Astone.  I worked for Santina and indirectly Mr Astone.  I did so for no pay.  I sold vegetables and fruit and plates and cups on a door to door basis.  I was forced to do this by Santina.  I was beaten with a strap if I refused.

6. There are other difficulties in Nic's claim based on estoppel but those are sufficient to show that he has no arguable case.

7. Nic also did work on the Land.  Some of the work is the sort of thing that a son will often do for his mother, especially when he is living at the property.  Nevertheless, Nic says that he carried out various work on the Land and that he would not have done so if Santina had told him she was not going to give him a share of the house when she passed away.  Nic swears:

   I would not have done the above work if Santina had told me she was not going to give me a share of the house when she passed away.  I have spent a lot of money, time and energy to help Santina from a very early age.  I believe Santina knew this and that is why she promised me a share of the [Land] when she passed away.  Santina also promised me a share of the funds in her bank account.

8. This evidence again highlights the equivocal, ambiguous nature of the representations relied upon.  There was no clear representation or assumption made by Nic that he would receive a half share of the Land, a quarter share or any share in the Land as distinct from a share of Santina's bank account.  In any event there is no evidence that Santina made any relevant representation to Nic prior to any or each item of work that he carried out and that he carried out any of those items of work in reliance upon any particular representation or assumption.

Nancy's claims

1. Nancy claims that she worked for Santina and indirectly for Mr Astone without reward.  Nancy swore in her affidavit of 26 November 2009 that she worked for many years for Mr Astone.  She knew that Santina worked for Mr Astone.  Nancy worked for Santina and indirectly Mr Astone.  She did so for no pay.  She sold vegetables and fruit and plates and cups on a door to door basis.  She says she 'was forced to do this by Santina'.

2. The proceeds of the sales she always handed to Santina.  This happened for many years.  Nancy says that as a result of this Santina was able to use the money earned through her endeavours to eventually buy the Land in about 1972.  At that time Santina said:

   If you help me out, we can get this house.  When I am no longer around you will benefit from it.  You three, Nic and you helped me much more.

3. Nancy says that on many occasions over the course of the last 37 years or so Santina said to her:

   I cannot pay you any money.  I do not have it.  I will give you half this house when I die.  You will get your share of this house.

4. There is no evidence that Nancy carried out work for Mr Astone, which benefitted Santina, in reliance on any representation or on the assumption that she would receive a half share or any share in the Land on Santina's death.  Indeed, counsel for Nancy conceded that 'the only evidence is that the conduct regarding working for Mr Astone preceded the representation'.  Nancy also carried out some gardening work for Santina but counsel for the plaintiffs conceded that there is no evidence that she did so in reliance upon any representation or on the assumption that she would receive any share in the Land.

5. There are other difficulties with Nancy's claim but the lack of any evidence of detrimental reliance is sufficient to establish that she has no arguable case.

6. There is no evidence to support the plaintiffs' case of unconscionable conduct.

Mental capacity

1. There is no evidence capable of making out an arguable case that Santina lacked the required mental capacity to make the Deed of Gift, the Transfer or the Will.

2. The plaintiffs have provided no medical evidence concerning Santina's mental capacity.  Nic says that Santina's health fluctuated from 1997 and she displayed mental deterioration and disability.  He says that Santina's mental capacity had slowed down and had been affected by the stroke.  Nancy gives similar evidence.  That is insufficient to raise a case that at the time she executed the Deed, the Transfer and the Will, Santina did not have the necessary mental capacity.

3. A testator must have the necessary mental capacity to make a valid will.  The testator must have:

   Sufficient mental capacity to comprehend the nature of what he was doing, and its effects; that he was able to realise the extent and character of the property he was dealing with, and to weigh the claims which naturally ought to press upon him.  In order that a man should rightly understand these various matters it is essential that his mind should be free to act in a natural, regular and ordinary manner.

   In the Will of Wilson (1897) 23 VLR 197, 199 (Hood J) approved in Timbury v Coffee (1941) 66 CLR 277.

4. Prior to executing the Deed of Gift Santina obtained and provided to Mr Martella, the solicitor who drew the deed, a certificate from her general practitioner, Dr Koong, that she was of sound mind and able to understand the contents of a Deed of Gift of property.  Dr Adonis, Santina's general practitioner from 2003 until her death in 2009, states in his report of 14 March 2010 that when he initially saw Santina in October 2003 she presented in a positive manner with no apparent deficiencies in her cognitive state.  Dr Adonis states that Santina 'was competent to make decisions as to the disposition of her estate' and 'at no time during my management of Mrs Casella did I believe that she was unable to make a decision [in relation to the disposition of her estate]'.  Dr Somers, Santina's treating physician and cardiologist knew Santina from December 2007 and was involved in her medical management until the time of her death.  Dr Somers states in a report of 9 March 2010:

   I had no doubt whatsoever in her competence to make decisions as to the administration of her own financial affairs.

5. The Deed of Gift was drawn by Martella & Co, solicitors.  It is conceded by the plaintiffs that Martella & Co were solicitors independent of Josie.  Clause 3 of the Deed of Gift provides:

   The donor hereby further acknowledges that she has prior to the execution of this Deed and the resulting Transfer of Land instrument, received independent legal advice and makes the gift contemplated by this Deed voluntarily and without any duress or coercion on the part of the Donee.

   The execution clause states that the deed was signed by Santina:

   … she being unable to read in the English language after the same had been read and explained to her in Italian by Salvatore Martella, Solicitor, a person understanding both languages she then appearing to understand fully its nature and effect …

   The deed is then witnessed by Salvatore Martella, solicitor.

6. The Will was also drawn by Martella & Co.  It was executed in the presence of Mr Martella and Jeremy James Knowles, a solicitor.  The execution clause provides that the Will was executed in the presence of the two solicitors and that prior to its execution the Will was read over by Salvatore Martella and translated into the Italian language to Santina, she being Italian and Italian being the customary language understood by her and she seemed fully to understand and approve the same and the nature and effect of it.

Conclusion

1. In all the circumstances I am satisfied that the defendant has a good defence on the merits in relation to each cause of action relied upon by each of the plaintiffs and the action should be dismissed summarily.