Martiniello v Scheele - [2021] ACTSC 96

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Martiniello v Scheele
Citation:	[2021] ACTSC 96
Hearing Date:	20 May 2021
DecisionDate:	20 May 2021
Before:	Mossop J
Decision:	See [14] and [16]
Catchwords:	REAL PROPERTY – CAVEATS – Application to extend lapsed caveat – where plaintiff alleged the existence of an unsecured loan – no arguable case for a caveatable interest in land established – application dismissed
Legislation Cited:	Land Titles Act 1925 (ACT), s 104
Cases Cited:	Adrija Pty Ltd v Mohamed, Ahmed and Registrar General ACT Land Titles Office [2013] ACTSC 120 Nguyen v Kaha [2008] NSWSC 794
Parties:	Pietro Martiniello (Plaintiff) Peter Scheele (First Defendant) Stella Scheele (Second Defendant)
Representation:	Counsel R Markham (Plaintiff) K Musgrove (Defendants)
Solicitors Adero Law (Plaintiff) Campbell & Co Lawyers (Defendants)
File Number:	SC 164 of 2021

MOSSOP J:

The plaintiff, Pietro Martiniello, has applied by Originating Application filed 30 April 2021 for the extension of the operation of caveat number 3070175. The caveat in question related to residential land in Torrens owned by the plaintiff’s daughter, Stella Scheele and her husband, Peter Scheele. The nature of the interest in land is described in the caveat in the following terms:

I loaned Mr Peter Sheele [sic] an amount of $100,000 in two instalments of $50,000 to complete the renovation of 46 Brookman Street Torrens.

The affidavit in support of the application describes the basis for the application in the following terms:

I am the person who lent Peter Scheel [sic] $100,000 to complete renovations at 46 Brookman St, Torrens. The loan was in two instalments of $50,000.

The affidavit does not describe the factual basis upon which it is said that any advancement of money was by way of a loan. The affidavit also indicates that the plaintiff needs the caveat extended to ensure that the money is repaid. It identified that the plaintiff is not seeking interest on the money. He says that he wrote to his daughter and son-in-law on 2 February 2021 seeking that the monies be repaid and that no response was received.

The first and second defendants rely upon four affidavits. The first is of Stella Scheele who describes the circumstances in which two cheques of $50,000 each were given to her. She deposes to facts which are consistent with the money being paid as gifts and inconsistent with the money being advanced as a loan.

The affidavit of Peter Scheele is to similar effect. He says, inter alia, that the word “loan” was not mentioned at any relevant time or in any written documentation about the money.

The affidavit of Rose Rodriguez who assisted her mother, Elena Messina, with bookkeeping for the plaintiff and Ms Messina’s business deposes to facts not supportive of the payment being a loan as opposed to a gift.

Finally, there is the affidavit of the plaintiff’s ex-wife, Elena Messina, who deposes to facts which are consistent with the advancement of money being as a gift and inconsistent with the…

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 Martiniello v Scheele

Details

AGLC: Martiniello v Scheele [2021] ACTSC 96
Case: [2021] ACTSC 96
Decision Date

CaseChat Overview and Summary

The case of Martiniello v Scheele involved Pietro Martiniello, who sought to extend the operation of a caveat he had placed on residential land owned by his daughter, Stella Scheele, and her husband, Peter Scheele. The caveat was based on an alleged loan of $100,000 made by Martiniello to Peter Scheele for renovations on the property. The defendants, the Scheeles, opposed the application, asserting that the payments were made as gifts, not loans. The case was heard by Mossop J in the Supreme Court of the Australian Capital Territory.

The primary legal issue before the court was whether Martiniello had established an arguable case for a caveatable interest in the land. Under the Land Titles Act 1925 (ACT), a caveat can be lodged by a person claiming an interest in the land, but it must be justified by a serious question to be tried and a favourable balance of convenience. Martiniello argued that his alleged loan to Peter Scheele created an equitable interest in the property, which would warrant the extension of the caveat. The court considered whether the existence of an unsecured loan to a landowner could give rise to a caveatable interest.

The court determined that an unsecured loan to a landowner does not inherently create a caveatable interest in the property. The court found that Martiniello had not established a serious question to be tried regarding any equitable interest in the property. The affidavits provided by the Scheeles and others indicated that the payments were made as gifts, not loans, which was inconsistent with Martiniello’s claim. Since Martiniello had not demonstrated an arguable case for a caveatable interest, the court dismissed the application to extend the caveat.

The court’s orders were to discharge an earlier order made by Elkaim J, dismiss Martiniello’s application to extend the caveat, and direct the Registrar to notify the Registrar-General of the orders. The court also ordered that Martiniello pay the defendants’ costs of the proceeding, deciding against a gross sum costs order due to insufficient evidence to justify such an order.

Orders