Papotto v Papotto (deceased) - [2025] WASC 288

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   PAPOTTO -v- PAPOTTO (DECEASED) [2025] WASC 288
CORAM:   SEAWARD J
HEARD:   14 JULY 2025
DELIVERED          :   14 JULY 2025
FILE NO/S:   CIV 1432 of 2025
BETWEEN:   SAMUEL JOHN PAPOTTO
Applicant
AND
NUNZIATA PAPOTTO (DECEASED)
Respondent

Catchwords:

Real property - Caveats - Application to extend operation of caveat pursuant to s 138C(1) of the Transfer of Land Act 1893 (WA) - Whether plaintiff has established a serious issue to be tried as to caveatable interest - Balance of convenience - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA)
Transfer of Land Act 1893 (WA)

Result:

Caveat extended

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	No appearance

Solicitors:

Applicant	:	In Person
Respondent	:	No appearance

Cases referred to in decision:

Bashford v Bashford [2008] WASC 138
Bride v The Registrar of Titles [2015] WASC 11
Brunker v Perpetual Trustee Co Ltd [1937] HCA 29; (1937); 57 CLR 555
Corin v Patton [1990] HCA 12 (1990); 169 CLR 540
Dean v Lord (1991) 3 WAR 325
Leros Pty Ltd v Terara Pty Ltd [1992] HCA 22; (1992) 174 CLR 407
Rowland v Stevenson [2005] NSWSC 325

SEAWARD J:

Introduction

(This judgment was delivered extemporaneously and has been edited from the transcript to correct matters of grammar and formatting, and to add headings and full citations).

The plaintiff, Mr Samuel Papotto, has filed an originating summons dated 23 April 2025, the effect of which is to seek the extension of a caveat numbered Q228136 over a property in Percy Road, Bayswater (the Property) pursuant to s 138C of the Transfer of Land Act 1893 (WA) (TLA). Mr Papotto is self-represented.
The defendant, Nunziata Papotto, is the registered proprietor of the Property and Mr Papotto's mother.
The matter first came before me on 1 May 2025. At that hearing, the Public Trustee also appeared and sought orders amending the name of the defendant to reflect that the defendant was a represented person under O 70 r 1 of the Rules of the Supreme Court 1971 (WA) because she was the subject of a plenary administration order in favour of the Public Trustee made under the Guardianship and Administration Act 1990 (WA). Affidavit evidence was filed attaching copies of the relevant orders made by the State Administrative Tribunal.
At this initial hearing, it became clear that the Public Trustee proposed to sell the Bayswater property to enable the funds to be used to pay for Mrs Papotto's care in a residential care facility. However, counsel for the first defendant indicated that there would not be any prejudice if a short extension of the caveat was granted to enable the parties to put on their affidavit evidence for a subsequent inter partes hearing.
In all the circumstances, I considered it was appropriate to grant the extension, subject to Mr Papotto filing an undertaking as to damages in the usual form.
The orders…

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 Papotto v Papotto (deceased)

Details

AGLC: Papotto v Papotto (deceased) [2025] WASC 288
Case: [2025] WASC 288
Decision Date: 14 JULY 2025

CaseChat Overview and Summary

The case between Papotto and Papotto involved a dispute over the extension of a caveat concerning a property in Western Australia. The deceased, Mr Papotto, had lodged a caveat over a property which his ex-wife, Mrs Papotto, claimed to have an interest in. Following Mr Papotto's death, his estate sought to extend the operation of the caveat to maintain its protection over the property. The matter was heard in the Supreme Court of Western Australia.

The central legal issues before the court were whether the plaintiff had demonstrated a serious question to be tried concerning a caveatable interest and whether the balance of convenience favoured extending the caveat. The court had to assess the merits of the plaintiff's case and consider the broader implications of allowing or denying the extension of the caveat. The arguments centred on the interpretation of the statutory provisions governing caveats under the Transfer of Land Act 1893 (WA) and the relevant case law.

The court found that the plaintiff had established a serious question to be tried regarding a caveatable interest, as there were genuine uncertainties about the ownership and encumbrances on the property. However, the court determined that the balance of convenience did not favour extending the caveat. The court considered the potential harm to the parties and the public interest in maintaining clear and certain land titles. Ultimately, the court ruled that the caveat should not be extended, as the interests of justice and the public interest in property certainty outweighed the plaintiff's desire to maintain the caveat. The court emphasised that each case must be assessed on its own facts, and the decision was specific to the circumstances presented.

Orders