Casella v Parkridge Group Pty Ltd - [2023] WASC 224

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   CASELLA -v- PARKRIDGE GROUP PTY LTD [2023] WASC 224
CORAM:   SOLOMON J
HEARD:   16 JUNE 2023
DELIVERED          :   16 JUNE 2023
PUBLISHED           :   22 JUNE 2023
FILE NO/S:   CIV 1538 of 2023
BETWEEN:   DOMENIC CASELLA
Applicant

AND

PARKRIDGE GROUP PTY LTD
First Respondent

THE REGISTRAR OF TITLES
Second Respondent

Catchwords:

Application to extend caveat - Transfer of Land Act s 138B - No real caveatable interest - Application for interlocutory injunction - Serious question to be tried - Turns on own facts

Legislation:

Limitation Act 2005 (WA)
Property Law Act 1969 (WA) s 34
Transfer of Land Act 1893 (WA) s 55, s 138B, s 138C, s 140

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	JC Yeldon
First Respondent	:	P Edgar
Second Respondent	:	No appearance

Solicitors:

Applicant	:	TGC Lawyers
First Respondent	:	Fletcher Law
Second Respondent	:	No appearance

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

Bashford v Bashford [2008] WASC 138
Lee v Mavaddat [2007] WASC 18
Plummer v Attorney General of NSW [2018] NSWSC 869
Secretary, Department of Social Security v James [1990] FCA 213
Twinside v Venetian Nominees [2008] WASC 110

SOLOMON J:

(This judgment was delivered extemporaneously on 16 June 2023 and has been edited from the transcript.)

Background

On 23 May 2023 the applicant, Mr Domenic Casella, whom I shall refer to as Mr Casella, filed an application under s 138B of the Transfer of Land Act 1893 (WA) (the TLA). That application sought orders under s 138C of the TLA extending the operation of caveat P478068 lodged by Mr Casella over various lots of land that were created or subdivided from a larger parcel of land purchased by a company by the name of Eaton Developments Pty Ltd (Eaton Developments).
The evidence demonstrates that Eaton Developments purchased the original parcel of land for $4,250,000 pursuant to a contract dated 6 August 1993 and stamped on 18 November 1993. The Landgate records show that Eaton Developments became the registered proprietor of the original parcel of land on 19 November 1993. The estate and interest claimed by Mr Casella is as beneficial owner of the land.
I pause to observe that the copy of the caveat provided with the affidavit in support of the application, that is the affidavit of Mr Casella sworn on 22 May 2023, was difficult to read and appeared to be incomplete. At the request of the court, the plaintiff's solicitors provided a full and legible copy of the caveat by email. It was unsupported by an affidavit, but I accept that this appears to be a caveat in the usual form. It is an absolute caveat, and the estate and interest claimed in that caveat is 'as beneficial owner', that is a claim that Mr Casella is the beneficial owner of the land the subject of the caveat.
I should observe that the matter came before me on an urgent basis on 24…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Casella v Parkridge Group Pty Ltd

Details

AGLC: Casella v Parkridge Group Pty Ltd [2023] WASC 224
Case: [2023] WASC 224
Decision Date

CaseChat Overview and Summary

Domenic Casella sought to extend a caveat he had lodged over lots of land that were created or subdivided from a larger parcel of land originally purchased by Eaton Developments Pty Ltd, a company he was a director of. The first respondent, Parkridge Group Pty Ltd, opposed the application, asserting that Casella had no real or equitable interest in the land. The matter was heard in the Supreme Court of Western Australia, where Solomon J dismissed Casella's application. The judge found that there was no evidence to support Casella's claim that he had a proprietary interest in the land, either as a shareholder of Eaton Developments or otherwise. The evidence suggested that Eaton Developments had acted as a trustee for a unit trust and had held the land solely in that capacity. Solomon J further determined that Casella's claim was statute-barred under the Limitation Act 2005 (WA), and that an interlocutory injunction would not be appropriate in the circumstances. The court ordered that costs up until the filing of the plaintiff's submissions be paid on an indemnity basis, and thereafter on a party-and-party basis.

Orders