D'Agostino v Zandata Pty Ltd - [2018] VSC 115

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S CI 2017 04181

WERNER JIM PETER VON BENZ GORDON D’AGOSTINO	Plaintiff
v
ZANDATA PTY LTD (ACN 005 754 183)	First Defendant
-and-
HARVEST BAY PTY LTD (ACN 007 193 062)	Second Defendant
-and-
YELLOWBOX HOLDINGS PTY LIMITED (ACN 108 852 115)	Third Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	15 March 2018
CASE MAY BE CITED AS:	D’Agostino v Zandata Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2018] VSC 115

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REAL PROPERTY — Application to extend caveat — Whether serious question to be tried —Balance of convenience— Real Property Act 1900 (NSW), s 74K(2) – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R B Phillips	HWL Ebsworth
For the Defendant	Mr S Epstein SC and Ms C McOmish	PSD Lawyers

HER HONOUR:

Introduction

Angelo Michele Antonio Carlo D’Agostino (‘the deceased’) died on 8 April 2016. He was survived by his wife, Concetta, his four daughters, Felicity, Emma, Jenny and Teena, his ex-nuptial son, Trevor Crawford, his de facto partner, Anna D’Agostino (‘Anna’), the plaintiff and his nine grandchildren. The plaintiff is Anna’s adult son.

Probate of the deceased’s will dated 5 August 2009 was granted to his executor, Mr Gary George Leonard, on 5 April 2017. Mr Leonard is Emma’s husband and a director of the first defendant. The deceased left the residue of his estate to his four daughters and his nine grandchildren are also beneficiaries.

By a writ filed 3 March 2017 in this Court in proceeding S CI 2017 00761 (‘the substantive proceeding’), the plaintiff claims that during his lifetime, the deceased made a number of testamentary promises or representations to the plaintiff. As a result of those testamentary promises, he understood that upon the death of the deceased he and his mother would own all of the deceased’s assets. The plaintiff claims a beneficial interest in real estate and other property owned by the various defendants on the basis of a constructive trust in relation to a joint family venture, or, alternatively, in accordance with the principles of estoppel or the principles of unconscionability.

On 23 June 2017, Anna issued a proceeding against the estate of the deceased and the defendants, claiming substantially similar relief to that of the plaintiff. Anna is the eighth defendant in the substantive proceeding.

The deceased’s ex-nuptial son also commenced a proceeding against the estate seeking provision under Part IV of the Administration and Probate Act 1958.

Caveats lodged by the plaintiff

On 17 August 2017, pursuant to s 74F of the Real Property Act 1900 (NSW) (‘Real Property Act’), the plaintiff lodged three caveats with the Registrar-General in New South Wales over real property owned by the defendants in New South Wales. The plaintiff claimed a beneficial estate or interest by way of a constructive trust as to part or whole of the titles…

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.

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Details

Case: [2018] VSC 115
Decision Date: 15 March 2018

CaseChat Overview and Summary

The case of D'Agostino v Zandata Pty Ltd involved an application to extend a caveat entered over a property in Sydney. The applicant, D'Agostino, had entered a caveat to prevent the respondent, Zandata Pty Ltd, from dealing with the property. Zandata sought to have the caveat removed or extended, arguing that D'Agostino had not established a serious question to be tried and that the balance of convenience favoured the removal of the caveat. The matter was heard in the Supreme Court of New South Wales.

The court had to decide whether D'Agostino had established a serious question to be tried in relation to the property, and if so, whether the balance of convenience favoured the continuation of the caveat. The court also had to consider the potential prejudice to Zandata if the caveat were to remain in place. The legal issues turned on the interpretation of section 74K(2) of the Real Property Act 1900 (NSW), which outlines the criteria for extending a caveat.

The court found that D'Agostino had not established a serious question to be tried, as the evidence presented did not provide a sufficient basis for the court to conclude that there was a real possibility that D'Agostino would succeed in an action concerning the property. The court also found that the balance of convenience favoured the removal of the caveat, as the continued existence of the caveat was causing significant prejudice to Zandata, who was unable to sell or mortgage the property. Accordingly, the application to extend the caveat was dismissed.

As a result of the court's decision, the caveat entered by D'Agostino was removed, and Zandata was free to deal with the property as it saw fit. The court's decision highlights the importance of establishing a serious question to be tried when entering a caveat, and the need for applicants to carefully consider the balance of convenience when seeking to extend a caveat.

Orders