FAZARI -v- COSENTINO [2008] WASC 149

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASC 149
Case No:	CIV:1266/2008	Heard:	20 JUNE 2008
Coram:	LE MIERE J	Delivered:	24/07/08
No of pages:	14	Judgment Part:	1 of 1
Result:	Application allowed
Category:	B
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Parties:	MARIA FAZARI IMMACOLATA COSENTINO
Catchwords:	Caveat Application under Transfer of Land Act 1893 (WA) s 138C(1) for orders that the operation of caveats be extended until further order Mutual wills Whether caveator has an equitable interest in the properties Serious question to be tried Turns on own facts
Legislation:	Transfer of Land Act 1893 (WA), s 138C(1)
Case References:	Avco Financial Services Ltd v White [1977] VR 561 Barns v Barns [2003] HCA 9; (2003) 214 CLR 169 Birmingham v Renfrew (1937) 57 CLR 666 Composite Buyers Ltd v Soong (1995) 38 NSWLR 286 Custom Credit v Ravi Nominees (1992) 8 WAR 42 Healey v Brown [2002] WTLR 849 Kerabee Park Pty Ltd v Daley [1978] 2 NSWLR 222 Lewenberg & Pryles v Direct Acceptance Corporation Ltd [1981] VR 344 McMahon v McMahon [1979] VR 239 Nichols v Go-Tell Nominees Ltd (subject to deed of company arrangement) (1997) VConvR 54-573 Palmer v Bank of New South Wales (1975) 133 CLR 150 Re Goodchild [1997] 1 WLR 1216 Riverview Project Pty Ltd v Elleray [2007] VSC 150 Russell v Scott (1936) 55 CLR 440 Tremills v Tremills (Unreported, WASC, Library No 5540, 5 October 1984)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : FAZARI -v- COSENTINO [2008] WASC 149 CORAM : LE MIERE J HEARD : 20 JUNE 2008 DELIVERED : 24 JULY 2008 FILE NO/S : CIV 1266 of 2008 BETWEEN : MARIA FAZARI

Plaintiff

AND

IMMACOLATA COSENTINO

Defendant

Catchwords:

Caveat - Application under Transfer of Land Act 1893 (WA) s 138C(1) for orders that the operation of caveats be extended until further order - Mutual wills - Whether caveator has an equitable interest in the properties - Serious question to be tried - Turns on own facts

Legislation:

Transfer of Land Act 1893 (WA), s 138C(1)

Result:

Application allowed

(Page 2)

Category: B

Representation:

Counsel:

Plaintiff : Mr P J Hannan

Defendant : Mr J C Curthoys

Solicitors:

Plaintiff : Aherns Lawyers

Defendant : GG Legal

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

Avco Financial Services Ltd v White [1977] VR 561
Barns v Barns [2003] HCA 9; (2003) 214 CLR 169
Birmingham v Renfrew (1937) 57 CLR 666
Composite Buyers Ltd v Soong (1995) 38 NSWLR 286
Custom Credit v Ravi Nominees (1992) 8 WAR 42
Healey v Brown [2002] WTLR 849
Kerabee Park Pty Ltd v Daley [1978] 2 NSWLR 222
Lewenberg & Pryles v Direct Acceptance Corporation Ltd [1981] VR 344
McMahon v McMahon [1979] VR 239
Nichols v Go-Tell Nominees Ltd (subject to deed of company arrangement) (1997) VConvR 54-573
Palmer v Bank of New South Wales (1975) 133 CLR 150
Re Goodchild [1997] 1 WLR 1216
Riverview Project Pty Ltd v Elleray [2007] VSC…

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 Fazari v Cosentino

Details

AGLC: Fazari v Cosentino [2008] WASC 149
Case: [2008] WASC 149
Decision Date: 24 JULY 2008

CaseChat Overview and Summary

In the Supreme Court of Western Australia, Fazari v Cosentino concerned an application by Fazari under the Transfer of Land Act 1893 (WA) s 138C(1) for orders that the operation of caveats be extended until further order. The case involved a dispute over the equitable interest in certain properties, which were subject to mutual wills. The parties were Fazari and Cosentino, both claiming rights to the properties.

The primary legal issues before the court were whether the caveator, Fazari, had an equitable interest in the properties, and whether a serious question to be tried existed that turned on the facts of the case. The court was tasked with determining whether Fazari had a sufficient interest to warrant the extension of the caveats, and if so, whether this interest was sufficient to justify the continuation of the caveats pending the resolution of the broader dispute.

The court considered the principles of equity and the nature of the mutual wills, which suggested that Fazari had an equitable interest in the properties. The court found that a serious question was indeed being tried, one that was not merely hypothetical or academic, but rather, one that turned on the specific facts of the case. Based on this finding, the court allowed Fazari's application and extended the operation of the caveats until further order.

Orders

Orders of the court

Application allowed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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