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Meynert v Leafdale Pty Ltd

Meynert v Leafdale Pty Ltd

Case [2005] WASC 102 25 May 2005

Administration of Estates

Property Law

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FERNE PETA MEYNERT as Executrix of the Estate of GIUSEPPE & GIUSEPPINA PITTORINO -v- LEAFDALE PTY LTD as Trustee for PITTORINO FAMILY ARRANGEMENT TRUST & ANOR [2005] WASC 102

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 102
Case No:	CIV:1096/2005	Heard:	5 MAY 2005
Coram:	MASTER NEWNES	Delivered:	25/05/05
No of pages:	15	Judgment Part:	1 of 1
Result:	No caveatable interest shown
Category:	B
PDF Version

Parties:	FERNE PETA MEYNERT as Executrix of the Estate of GIUSEPPE & GIUSEPPINA PITTORINO LEAFDALE PTY LTD as Trustee for PITTORINO FAMILY ARRANGEMENT TRUST REGISTRAR OF TITLES
Catchwords:	Real property Caveats Application to show cause why caveat should not be removed Whether residuary beneficiary under a will has caveatable interest in assets of estate before completion of administration
Legislation:	Inheritance (Family and Dependants' Provision) Act 1972 (WA) Transfer of Land Act 1893 (WA), s 137, s 138, s 138A, s 142
Case References:	Bahr v Nicolay (No 2) (1988) 164 CLR 604 Canny Gabriel Castle Jackson Advertising Pty Ltd v Volume Sales (Finance) Pty Ltd (1974) 131 CLR 321 Commissioner of Stamp Duties (Qld) v Livingston [1965] AC 694 Connell v Bond Corporation Pty Ltd (1992) 8 WAR 352 Custom Credit Corporation v Ravi Nominees Pty Ltd (1992) 8 WAR 42 Kuper & Kuper v Keywest Constructions Pty Ltd & Anor (1990) 3 WAR 419 Attorney-General v Breckler (1999) 197 CLR 83 Barns v Barns (2003) 214 CLR 169 Bonini v WA Real Estate Custodian Ltd [2001] WASC 258 Eng Mee Yong v Letchumanan [1980] AC 331 Gisborne v Gisborne (1877) 2 App Cas 300 Livingston v Commissioner of Stamp Duties (Qld); Coulson (dec) (1960) 107 CLR 411 Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306 Romano v Romano; Estate of Romano [2004] NSWSC 775 Stokes v Churchill; Estate of Frier, unreported; SCt of NSW (Santow J); 5189/90; 16 December 1993 Tankard v Midland Bank Executor and Trustee Company Limited [1942] Ch 69 Wendt v Orr [2004] WASC 28(S) Whale v Booth (1784) 4 Term Rep 625; 99 ER 755

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : FERNE PETA MEYNERT as Executrix of the Estate of GIUSEPPE & GIUSEPPINA PITTORINO -v- LEAFDALE PTY LTD as Trustee for PITTORINO FAMILY ARRANGEMENT TRUST & ANOR [2005] WASC 102 CORAM : MASTER NEWNES HEARD : 5 MAY 2005 DELIVERED : 25 MAY 2005 FILE NO/S : CIV 1096 of 2005 BETWEEN : FERNE PETA MEYNERT as Executrix of the Estate of GIUSEPPE & GIUSEPPINA PITTORINO

Plaintiff

AND

LEAFDALE PTY LTD as Trustee for PITTORINO FAMILY ARRANGEMENT TRUST

First Defendant

REGISTRAR OF TITLES

Second Defendant

Catchwords:

Real property - Caveats - Application to show cause why caveat should not be removed - Whether residuary beneficiary under a will has caveatable interest in assets of estate before completion of administration

(Page 2)

Legislation:

Inheritance (Family and Dependants' Provision) Act 1972 (WA)

Transfer of Land Act 1893 (WA), s 137, s 138, s 138A, s 142

Result:

No caveatable…

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 Meynert v Leafdale Pty Ltd

Details

AGLC: Meynert v Leafdale Pty Ltd [2005] WASC 102
Case: [2005] WASC 102
Decision Date

CaseChat Overview and Summary

The matter before the Supreme Court of Western Australia was an application by Ferne Peta Meynert, the executrix of the estates of Giuseppe and Giuseppina Pittorino, to compel Leafdale Pty Ltd, the trustee of the Pittorino Family Arrangement Trust, to show cause why caveats it had lodged over three Lancelin properties should not be removed. The caveats were based on the trustee's claim to be the sole beneficiary of the remainder of the estates of Giuseppe and Giuseppina Pittorino under their wills. The primary issue for the court was whether the trustee had a caveatable interest in the properties while the estates were still under administration. The court considered the nature of a beneficiary's interest in an unadministered estate, noting that such an interest is not proprietary but rather a right to compel proper administration. The court held that the trustee, as a beneficiary, did not have a proprietary interest in the properties and therefore lacked a caveatable interest. Consequently, the court ruled that the trustee had not shown cause why the caveats should not be removed.

Orders