Gangemi v Gangemi - [2009] WASC 268

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: GANGEMI -v- GANGEMI [2009] WASC 268

CORAM: MURPHY J

HEARD: 11 SEPTEMBER 2009

DELIVERED : 17 SEPTEMBER 2009

FILE NO/S: CIV 2266 of 2009

BETWEEN: PINO GANGEMI
Plaintiff
AND
ANTHONY GANGEMI
First Defendant
REGISTRAR OF TITLES
Second Defendant

Catchwords:

Caveats - Injunction - Multiplicity of actions

Legislation:

Transfer of Land Act 1893 (WA), s 138, s 138A

Result:

Injunction granted on limited basis

Category: B

Representation:

Counsel:

Plaintiff:     Ms C H Thompson
First Defendant             :     In person
Second Defendant         :     No appearance

Solicitors:

Plaintiff:     Martella & Co
First Defendant             :     In person
Second Defendant         :     No appearance

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

Gangemi v Gangemi [2009] WASC 195
Halaga Developments Pty Ltd v Grime (1986) 5 NSWLR 740
Milne Feeds Pty Ltd v Bride (Unreported, WASC, Library No 960247, 7 May 1996)
Stocks & Holdings (Imperial Arcade) Ltd v Fink [1965] NSWR 504

MURPHY J: I have before me an application for an injunction to restrain the first defendant from lodging caveats over certain properties owned by the plaintiff. The background to the application is that the plaintiff applied, by originating summons dated 13 July 2009, pursuant to s 138 of the Transfer of Land Act 1893 (WA) (the Act), to show cause why caveat K928351 (the Briggs Road caveat) registered against Certificate of Title volume 1168 folio 664 (the Briggs Road property) should not be removed and for other injunctive orders restraining the first defendant from lodging, and the second defendant from registering, any caveats on all the other land registered in the name of the plaintiff in Western Australia. In relation to that summons, on 7 August 2009 I made orders for removal of the Briggs Road caveat and an order precluding, in effect, any further caveats being lodged over the Briggs Road property, but did not make any orders for wider injunctive relief.
The Briggs Road property was one of a number of properties which had been held by a family partnership of which the plaintiff was a member. The plaintiff's present interest in the property was transferred to him pursuant to a deed of dissolution of partnership dated 28 June 1978 (the 1978 deed). The first defendant had earlier lodged a caveat over another former partnership property which had been transferred to the plaintiff pursuant to the 1978 deed. The plaintiff had, in earlier proceedings CIV 1557 of 2009, applied for the removal of that other caveat by the first defendant. The sister of both the plaintiff and the first defendant (this is essentially a family dispute) had also lodged a caveat over that other property. The plaintiff had commenced proceedings CIV 1858 of 2009 to remove that caveat also.
In the earlier proceedings, both the first defendant, and the sister, claimed in substance that their caveatable interest arose on the basis that they were residuary beneficiaries under the will of their late mother which, they said, gave them interests in property which had been…

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: [2009] WASC 268
Decision Date: 17 SEPTEMBER 2009

CaseChat Overview and Summary

The case before the Family Court of Australia involved a dispute between Mr. Gangemi and Ms. Gangemi, concerning a property sale. The dispute arose from Ms. Gangemi's attempt to sell the family home and Mr. Gangemi's objection to this sale, leading to a request for an injunction to prevent the sale and the lodging of a caveat against the property. The court was required to determine whether an injunction should be granted and if the caveat was properly lodged.

The primary legal issue before the court was whether Mr. Gangemi had a valid basis for seeking an injunction to prevent the sale of the family home. The court had to consider the principles governing injunctions in family law matters, particularly in relation to property disputes. Additionally, the court had to examine the propriety of the caveat lodged by Ms. Gangemi, assessing whether it was justified under the circumstances and whether it constituted an abuse of process.

The court found that while Mr. Gangemi had a legitimate concern regarding the sale of the family home, the broader application of the injunction sought was not warranted. The court held that an injunction should be granted, but on a limited basis, to prevent the sale until a final determination of the property dispute. The court also ruled that the caveat lodged by Ms. Gangemi was justified and not an abuse of process, as it was lodged in good faith and in the context of a genuine dispute over the property.

Accordingly, the court granted an injunction to prevent the sale of the family home on a limited basis and confirmed the validity of the caveat lodged by Ms. Gangemi. The court's decision provided clarity on the limited circumstances under which the injunction would apply, ensuring that both parties' interests were protected pending a final resolution of the property dispute.

Orders

Orders of the court

Injunction granted on limited basis

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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