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Mazzuchelli v Mazzuchelli

Mazzuchelli v Mazzuchelli

Case [2006] WASC 124 29 June 2006

Equitable Estoppel

Easements & Covenants

Property Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: MAZZUCHELLI -v- MAZZUCHELLI & ANOR [2006] WASC 124

CORAM: HASLUCK J

HEARD: 8 JUNE 2006

DELIVERED : 29 JUNE 2006

FILE NO/S: CIV 2160 of 2005

BETWEEN: ANSELM JOSEPH MAZZUCHELLI
Plaintiff
AND
KIERAN BENEDICT MAZZUCHELLI
First Defendant
REGISTRAR OF TITLES
Second Defendant

Catchwords:

Conveyancing - Land titles under the Torrens system - Easements - Claim of equitable estoppel - Application to maintain or extend caveats - Adjoining farms owned by brothers - Assertion of informal agreement to allow plaintiff a licence to enter and use the defendant's lands and facilities - Plaintiff expended moneys on maintenance and improvements - Claim that defendant induced plaintiff to act on assumed state of affairs - Assumption by plaintiff that alleged arrangement would continue - Allegation that acquiescence of defendant contributed to plaintiff's belief - Application to amend pleadings allowed - Whether sufficient evidence of representation or agreement concerning the perpetual licence contended for - Plaintiff held not to have a caveatable interest in the land based upon an equitable estoppel or easement - Leave to lodge further caveats or to extend operation of caveats refused

Legislation:

Property Law Act 1969 (WA), s 34
Rules of the Supreme Court 1971 (WA), O 21 r 5

Transfer of Land Act 1893 (WA), s 137, s 138, s 138B, s 138C, s 138D(1)(e), s 139

Result:

Plaintiff refused leave to lodge or extend operation of subject caveats
Application to amend statement of claim allowed

Category: B

Representation:

Counsel:

Plaintiff:     Mr H Sklarz
First Defendant             :     Mr I Weldon
Second Defendant         :     No appearance

Solicitors:

Plaintiff:     Henry Sklarz
First Defendant             :     Lavan Legal
Second Defendant         :     No appearance

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

Blacks Ltd v Rix [1962] SASR 161
Butler v Fairclough (1917) 23 CLR 78
Coleman v Foster (1856) 1 H & N 37
Commonwealth v Verwayen (1990) 170 CLR 394
Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605
Crabb v Arun District Council [1976] Ch 179
Crampton v French (1995) V Conv R 54‑529
Deputy Commissioner of Taxation v Corwest Management Pty Ltd [1978] WAR 129
Di Masi v Piromalli [1980] WAR 57
Errington v Errington & Woods [1952] 1 KB 290
Foran v Wight (1989) 168 CLR 385
Forestview Nominees Pty Ltd & Silkchime Pty Ltd v Perpetual Trustees WA Ltd (1998) 193 CLR 154
Howie v New South Wales Lawn Tennis Ground Ltd (1956) 95 CLR 132
Hurt v Freeman [2002] NSWSC 264
J & H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546
Jandric v Jandric [1999] WASC 22
Kuper v Keywest Constructions Pty Ltd (1990) 3 WAR 419
Legione v Hateley (1983) 152 CLR 406
Leros Pty Ltd v Terara Pty Ltd (1992) 174 CLR 407
Lieschke v Lieschke [2003] NSWSC 743
McBean v Howey [1958] NZLR 25
Piromalli v Di Masi [1980] WAR 173
Porter v McDonald & Registrar of Titles [1984] WAR 271
Radonich v Radonich [1999] WASC 165
Ramsden…

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 Mazzuchelli v Mazzuchelli

Details

AGLC: Mazzuchelli v Mazzuchelli [2006] WASC 124
Case: [2006] WASC 124
Decision Date: 29 JUNE 2006

CaseChat Overview and Summary

In the case of Mazzuchelli v Mazzuchelli, the plaintiff, Mazzuchelli, sought to maintain or extend caveats over land owned by his brother, the defendant, Mazzuchelli. The brothers owned adjoining farms and the plaintiff sought to rely on an alleged informal agreement that allowed him a perpetual licence to enter and use the defendant's lands and facilities. The plaintiff claimed that he had expended moneys on maintenance and improvements on the basis of this alleged agreement and that the defendant had induced him to act on the assumed state of affairs. The case was heard by the Supreme Court of South Australia.

The legal issues in the case included whether there was sufficient evidence of a representation or agreement concerning the perpetual licence contended for, and whether the plaintiff had a caveatable interest in the land based on an equitable estoppel or easement. The court had to determine if the plaintiff had acted on an assumed state of affairs based on the defendant's acquiescence and whether this contributed to the plaintiff's belief that the arrangement would continue.

The court found that the plaintiff had not acted on an assumed state of affairs based on the defendant's acquiescence. The court also held that the plaintiff did not have a caveatable interest in the land based on an equitable estoppel or easement. The application to amend the pleadings was allowed, but leave to lodge further caveats or to extend the operation of the caveats was refused. The court found that the plaintiff had not established a sufficient basis for the claimed licence or for the maintenance or extension of the caveats.

Orders