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Consolaro v Consolaro

Consolaro v Consolaro

Case [2002] WASC 92 26 April 2002

Unconscionable Conduct

Property Law

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CONSOLARO -v- CONSOLARO [2002] WASC 92

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASC 92
Case No:	CIV:2898/2001	Heard:	16 APRIL 2002
Coram:	ROBERTS-SMITH J	Delivered:	26/04/02
No of pages:	25	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	A
PDF Version

Parties:	PHILLIP JAMES CONSOLARO ROSS JOSEPH CONSOLARO
Catchwords:	Real property Torrens System Caveat Removal Whether lodged without reasonable cause Transfer of Land Act 1893, s 140 Onus of proof Compromise of earlier proceedings Consent judgment Whether same interest claimed Whether claim barred Deed of release and discharge Compromise of proceedings Whether operates as bar to subsequent claim of equitable interest in land to support caveat Res judicata Anshun estoppel Whether claim of interest in land barred by consent judgment in earlier proceedings Procedure Limitation period Whether claim of equitable interest in land a claim in contract Applicable limitation period Whether right of action accrued
Legislation:	Limitation Act 1935 (WA), s 4, s 5, s 12, s 24, s 38(1)(c)(v) Transfer of Land Act 1893 (WA), s 140
Case References:	Baumgartner v Baumgartner (1987) 164 CLR 137 Beatty v Guggenheim Exploration Co (1919) 225 NY 380 Bedford Properties Pty Ltd v Surgo Pty Ltd [1981] 1 NSWLR 106 Blair v Curran (1939) 62 CLR 464 Bolton v Excell, unreported; FCt SCt of WA; Library No 930175; 7 April 1993; [1993] ANZ Conv R 562 Carroll v Azolio Pty Ltd, unreported; SCt of WA; Library No 980004; 19 January 1998; [1998] ANZ Conv R 485 Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 Custom Credit Corporation v Ravi Nominees Pty Ltd (1992) 8 WAR 42 Deputy Commissioner of Taxation v Corwest Management Pty Ltd & Anor [1978] WAR 129 Ebber v Isager [1995] 1 Qd R 150 Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (1993) 43 FCR 510 Eng Mee Yong v Lutchumanan [1980] AC 331 Gill v Gill (1921) 21 SR (NSW) 400 Greenhalgh v Mallard [1947] 2 All ER 255 Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41 Isaacs v Ocean Accident and Guarantee Corp Ltd (1958) SR(NSW) 69 Jackson v Goldsmith (1950) 81 CLR 446 Kais v Turvey (1994) 11 WAR 357 Kuper v Keywest Constructions Pty Ltd (1990) 3 WAR 419 McMahon v McMahon [1979] VR 239 Muschinski v Dodds (1986) 160 CLR 583 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Rogers v Legal Services Commission (1995) 64 SASR 572 Rogers v R (1994) 181 CLR 251 Taddeo v Catalano (1975) 11 SASR 492 Thoday v Thoday [1964] P 181 Commonwealth Bank of Aust v Garon Pty Ltd [1999] WASC 170 Executive Seminars Pty Ltd v Peck & Ors [2001] WASC 229 Giumelli v Giumelli, unreported; SCt of WA; Library No 930491; 10 September 1993 Jandric v Jandric [1999] WASC 22; (1999) ANZ Conv R 614 Mason v Clarke [1955] 1 All ER 914

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : CONSOLARO -v-…

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 Consolaro v Consolaro

Details

AGLC: Consolaro v Consolaro [2002] WASC 92
Case: [2002] WASC 92
Decision Date

CaseChat Overview and Summary

The case involved a dispute between Phillip James Consolaro (the father) and Ross Joseph Consolaro (the son) over a caveat lodged by the son on the father's property. The father sought a declaration that the caveat was lodged without reasonable cause and an order for its removal, along with costs. The son argued that the caveat was lodged to protect his claimed equitable interest in the property, based on his contributions and work on the land prior to 1993. The father contended that the son's claim was barred by a previous compromise and consent judgment in earlier proceedings, res judicata, Anshun estoppel, and the Limitation Act. The court found that the son's claim was not barred by the earlier proceedings or the compromise, as the claims were distinct. The court also held that the son's claim was not an abuse of process and did not conflict with the earlier judgment. Finally, the court determined that the son's claim was not statute-barred, as it was based on an equitable interest rather than a contractual claim. The court dismissed the father's application, finding that the son was not precluded from claiming an interest in the land based on the facts and circumstances relied upon prior to October 1993.

Orders