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Multan Pty Ltd v Ippoliti

Multan Pty Ltd v Ippoliti

Case [2006] WASC 130 29 June 2006

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MULTAN PTY LTD -v- IPPOLITI & ANOR [2006] WASC 130

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 130
Case No:	CIV:2469/2005	Heard:	12 APRIL 2006
Coram:	SIMMONDS J	Delivered:	29/06/06
No of pages:	24	Judgment Part:	1 of 1
Result:	Application for orders allowed; further submissions as to orders called for
Category:	B
PDF Version

Parties:	MULTAN PTY LTD (ACN 058 063 344) JOEL LEIGH MACKAWAY IPPOLITI THE REGISTRAR OF TITLES
Catchwords:	Whether serious question to be tried as to constructive trust Whether such interest would be defeated by laches or acquiescence Whether order dismissing application but with ancillary order to give the caveator the security provided by its caveat was appropriate
Legislation:	Transfer of Land Act 1893 (WA), s 138B, s 138C
Case References:	Barnes v Addy (1874) 9 Ch App 244 Calverley v Green (1984) 155 CLR 242 Consul Development Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373 Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42 Hamdan v Widodo [2004] WASC 123 Hancock Family Memorial Foundation Ltd v Porteous (1999) 151 FLR 191 His Grace Metropolitan Petar & Ors v Macedonian United Society of Western Australia Incorporated & Ors [2003] WASC 15 Hooke v Holland [1984] WAR 16 In re Diplock [1948] Ch 465 Lamshed v Lamshed (1963) 109 CLR 440 Paul A Davies (Australia) Pty Ltd (in liq) v Davies [1983] 1 NSWLR 440 Pindan Pty Ltd v Sunny's Redevelopment Pty Ltd [2001] WASC 104 See-Day Pty Ltd v Farah Constructions Pty Ltd [2005] NSWCA 309 Corporate Affairs Commission v Drysdale (1978) 141 CLR 236 Fish v Page (1956) 96 CLR 233 Glasson v Fuller [1922] SASR 148 Hospital Products International Pty Ltd v United States Surgical Corporation (1984) 58 ALJR 587 Jones v Lipman [1962] 1 All ER 442 Kettles and Gas Appliances Ltd v Anthony Hordern & Sons Ltd (1934) 35 SR (NSW) 108 Mario Casella & Sons Builders Pty Ltd v Duckworth [2005] WASC 245 Mistmorn Pty Ltd (in liq) v Yasseen (1996) 21 ACSR 173 Orr v Ford (1989) 167 CLR 316 Perpetual Pty Ltd v National Australia Bank [2002] WASC 13 Porter v McDonald [1984] WAR 271 Re Diplock [1948] 1 Ch 465 Re Hallett's Estate [1880] All ER 793 Scott v Scott (1963) 109 CLR 649

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : MULTAN PTY LTD -v- IPPOLITI & ANOR [2006] WASC 130 CORAM : SIMMONDS J HEARD : 12 APRIL 2006 DELIVERED : 29 JUNE 2006 FILE NO/S : CIV 2469 of 2005 MATTER : Section 138C of the Transfer of Land Act 1893 (WA) (as amended) BETWEEN : MULTAN PTY LTD (ACN 058 063 344)

Plaintiff

AND

JOEL LEIGH MACKAWAY IPPOLITI

First Defendant

THE REGISTRAR OF TITLES

Second Defendant

Catchwords:

Whether serious question to be tried as to constructive trust - Whether such interest would be defeated by laches or acquiescence - Whether order dismissing application but with ancillary order to give the caveator…

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

AGLC: Multan Pty Ltd v Ippoliti [2006] WASC 130
Case: [2006] WASC 130
Decision Date

CaseChat Overview and Summary

Multan Pty Ltd v Ippoliti involved an application under the Transfer of Land Act 1893 (WA), s 138C, to extend the operation of a caveat, J501701, in relation to land in Subiaco. Multan Pty Ltd, the caveator, sought to extend the caveat to protect its interest in the land, which it claimed was held by Joel Ippoliti, the registered proprietor, on a constructive trust. The court had to decide whether there was a serious question to be tried as to the existence of a caveatable interest, whether such interest would be defeated by laches or acquiescence, and whether an order dismissing the application but with ancillary orders to protect the caveator's interest was appropriate.

The court found that there was a serious question to be tried as to whether Multan Pty Ltd had a caveatable interest in the property. The court considered the evidence of the directors' duties breach, the sale of the Albany Property at an undervalue, and the settlement with a shortfall of funds. The court also found that the equitable defences of laches and acquiescence were not made out. The court concluded that, despite the weaknesses in the caveator's case, it was not an "unusual" case such that the balance of convenience would justify denying any relief under s 138C.

The court held that if there was an ancillary order to an order dismissing the application for the extension of the caveat which would adequately protect the caveator's interest, such an order would be an appropriate exercise of its discretion under s 138C. The court suggested that an ancillary order could be made to direct the balance of the proceeds of the sale of the Subiaco Unit, and the Sydney property, in respect of which Mr Ippoliti used his equity in the Subiaco Unit as security, into a trust account for the benefit of the parties pending the resolution of the issue of the interest claimed against Mr Ippoliti or further order. The court invited the parties to make further submissions on the appropriate ancillary order.

Orders