Gangemi v Gangemi

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   GANGEMI -v- GANGEMI [2009] WASC 195

CORAM:   MURPHY J

HEARD:   25 JUNE 2009

DELIVERED          :   22 JULY 2009

FILE NO/S:   CIV 1557 of 2009

BETWEEN:   PINO GANGEMI

Plaintiff

AND

ANTHONY GANGEMI
First Defendant

NINO GANGEMI
PAUL GANGEMI
Second Defendants

REGISTRAR OF TITLES
Third Defendant

FILE NO/S              :CIV 1858 of 2009

BETWEEN             :PINO GANGEMI

Plaintiff

AND

CATERINA IERACE
First Defendant

NINO GANGEMI
PAUL GANGEMI
Second Defendants

REGISTRAR OF TITLES
Third Defendant

Catchwords:

Caveat - Whether caveatable interest existed by reason of a will - Effect of an alleged codicil not the subject of probate or letters of administration - Whether claim under Inheritance (Family and Dependants Provision) Act 1972 (WA) constituted a caveatable interest - Whether total failure of consideration for transfer of land

Legislation:

Transfer of Land Act 1893 (WA), s 138

Result:

Plaintiff succeeds in applications to remove caveats under s 138 of the Transfer of Land Act

Category:    B

Representation:

CIV 1557 of 2009

Counsel:

Plaintiff:     Ms C H Thompson

First Defendant              :     In person

Second Defendants        :     Ms M van der Kwast

Third Defendant            :     No appearance

Solicitors:

Plaintiff:     Martella & Co

First Defendant              :     In person

Second Defendants        :     Dwyer Durack

Third Defendant            :     No appearance

CIV 1858 of 2009

Counsel:

Plaintiff:     Ms C H Thompson

First Defendant              :     In person

Second Defendants        :     Ms M van der Kwast

Third Defendant            :     No appearance

Solicitors:

Plaintiff:     Martella & Co

First Defendant              :     In person

Second Defendants        :     Dwyer Durack

Third Defendant            :     No appearance

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

Baltic Shipping Company v Dillon (1993) 176 CLR 344

Bashford v Bashford [2008] WASC 138

Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42

David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353

Dean & Westham Holdings Pty Ltd v Lloyd (1991) 3 WAR 235

In the Estate of Langton [1964] P 163

Jandric v Jandric [1999] WASC 22

Kerabee Park Pty Ltd v Daley [1978] 2 NSWLR 222

Leros Pty Ltd v Terara Pty Ltd [1992] HCA 22; (1992) 174 CLR 407

Martin v Official Trustee in Bankruptcy [1990] Tas R 65

Midland Brick Company Pty Ltd v Welsh [2006] WASC 122; (2006) 32 WAR 287

Navarac Pty Ltd v Moondancer Holdings Pty Ltd [2009] WASCA 95

Quek v Beggs (1990) 5 BPR 11,761

Re Hayes' Will Trusts [1971] 1 WLR 758

  1. MURPHY J: I have before me two related applications, pursuant to s 138 of the Transfer of Land Act1893 (WA), by the same plaintiff to show cause why certain caveats registered against the same parcel of land ought not be removed. The plaintiff and the second defendants are the same in both matters and are the registered proprietors of the land over which the two caveats have been registered. The third defendant, the Registrar of Titles, has taken no part in these proceedings, other than to foreshadow that it…

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Details
Case
[2009] WASC 195
Decision Date

CaseChat Overview and Summary

This case, Gangemi v Gangemi, involved a dispute between Pino Gangemi and Maria Gangemi over the interpretation of a will and the existence of a caveatable interest in certain land. Pino contended that Maria's caveat, which sought to protect her interest in the land, was invalid because it was based on a purported codicil that was not validly executed and, therefore, not the subject of probate or letters of administration. Maria argued that the codicil did exist and that her claim constituted a caveatable interest under the Inheritance (Family and Dependants Provision) Act 1972 (WA). The case was heard in the Supreme Court of Western Australia.

The central legal issues in this case were whether a caveatable interest existed by reason of a will and whether an alleged codicil, not the subject of probate or letters of administration, could constitute a caveatable interest. Additionally, the court needed to determine if the claim under the Inheritance (Family and Dependants Provision) Act 1972 (WA) constituted a caveatable interest and whether there was a total failure of consideration for the transfer of the land. The court was also required to assess the validity of the alleged codicil and whether the caveat met the necessary requirements for a valid caveat.

The court held that the onus was on the caveator to establish the existence of an arguable caveatable interest in the land itself. A caveatable interest must be a proprietary interest in land, and it must exist at the time the caveat is lodged. The court emphasised the importance of the form of the caveat, stating that it must definitely or explicitly specify the estate or interest claimed and reveal the nature and extent of the claim. The court found that the 1987 document did not constitute a valid codicil to the 1985 will as it did not comply with the relevant statutory requirements. Consequently, the court concluded that Maria's caveat was invalid, and it ordered the caveat to be removed.

The final orders of the court were that Pino's application to discharge the caveat be granted, and Maria's caveat be removed from the register of titles. The court found that the 1987 document did not constitute a valid codicil to the 1985 will, and therefore, Maria's claim under the Inheritance (Family and Dependants Provision) Act 1972 (WA) did not constitute a caveatable interest. The court also held that there was no total failure of consideration for the transfer of the land.

Orders

Orders of the court

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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

The onus is then on the caveator to establish the existence of an arguable caveatable interest in the land itself; by its nature a caveatable interest must be a proprietary interest in land: Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42, 50; Jandric v Jandric [1999] WASC 22. The caveatable interest must exist at the time the caveat is lodged; it cannot be lodged to protect an interest in the future: Martin v Official Trustee in Bankruptcy [1990] Tas R 65, 69. As a matter of form, the caveat must definitely, or explicitly, specify the estate or interest claimed. It must reveal to the registered proprietor the nature and extent of the claim: Leros Pty Ltd v Terara Pty Ltd [1992] HCA 22; (1992) 174 CLR 407, 422 ‑ 423; Kerabee Park Pty Ltd v Daley [1978] 2 NSWLR 222, 231 ‑ 232. As Beech J observed in Bashford v Bashford [2008] WASC 138 [54], there are conflicting authorities on whether regard may be had to the statutory declaration in determining whether the caveat specifies the estate or interest claimed. A claim in a caveat to 'an equitable interest', or an interest 'as the beneficiary of a resulting or constructive trust' is defective in form: Bashford v Bashford [56], [92]. Also, a caveat must not go beyond the legitimate claim necessary to protect the caveator's rights: Midland Brick Company Pty Ltd v Welsh [2006] WASC 122; (2006) 32 WAR 287 [342]. In the exercise of the court's discretion under s 138, the balance of convenience is a relevant factor. There is no rule of law that once an arguable case for a caveatable interest has been established, removal of the caveat will only be ordered if it is shown that the 'circumstances are so unusual' that the caveat should be removed. The discretion is to be exercised having regard to the particular circumstances of the case. Observations in cases to the effect that it would be unusual to discharge a caveat once an arguable caveatable interest has been shown, are general observations by reference to the particular facts of the case: see Navarac Pty Ltd v Moondancer Holdings Pty Ltd [2009] WASCA 95 [20], [21] and [29]. Both caveators have referred to the 1987 document as constituting, in effect, a variation or codicil to the 1985 will. Pino has not objected to the reception into evidence of the 1987 document, notwithstanding s 71 of the Administration Act 1903 (WA). His counsel submitted, however, that the 1987 document is not a valid will as it does not comply with s 8 of the Wills Act 1970 (WA), and the 'informal wills' provisions in Part X of the Wills Act have no application because Domenica died prior to s 33 of the Wills Act coming into effect. I am unable to accept the submission that the Wills Act did not contain 'informal wills' provisions at the time of Domenica's death. The Wills Amendment Act 1987 (WA), No 69 of 1987 first introduced provisions regarding 'informal wills'. It came into operation on 22 November 1987. Domenica died in 1996. Those provisions (s 32, s 33, s 34, s 35, s 36, s 37 and s 38) have since then been amended, most recently by the Wills Amendment Act 2007 (WA), which came into operation on 9 February 2008. The 2007 amendments do not affect the operation of, relevantly, s 34 and s 35 of the Wills Act prior to 9 February 2008: s 33(2) of the Wills Act (as amended).