Papotto v Papotto (deceased)
[2025] WASC 288
•14 JULY 2025
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 made on that date amended the name of the defendant to reflect that she was presented by her guardian ad litem, the Public Trustee; required Mr Papotto to file and serve the undertaking by 4.00 pm on 5 May 2025; then any additional affidavit evidence or submissions by 29 May 2025; and then the defendant to file and serve their affidavit evidence and submissions by 12 June 2025. The matter was listed for hearing on 19 June 2025.
There was a further hearing held on 22 May 2025, following the defendant making an application on 9 May 2025, regarding whether Mr Papotto had complied with my orders regarding the undertaking as to damages. That application was deferred to the hearing on 19 June 2025, and it is not necessary to consider that further at this stage.
Sadly, Mrs Papotto died on 7 June 2025.
The Public Trustee wrote to the court advising of this information, and filed an affidavit of Shaun William Conlin sworn 10 June 2025, outlining the correspondence received from the SAT to this effect, and deposing that the Public Trustee was not aware of the existence of any will or purported will of the defendant that provides for the Public Trustee to be appointed executor of her estate.
In these circumstances, counsel for the Public Trustee explained that the Public Trustee had ceased to have power as plenary administrator in relation to Mrs Papotto's estate. However, the Public Trustee remained on the court record for the defendant in the proceedings.
The matter was listed for 16 June 2025 at which time the Public Trustee was removed from the record, and I granted a further adjournment until 14 July 2025 to enable Mr Papotto to deal with more pressing matters and consider the way forward.
At the hearing today, Mr Papotto indicated that he wished to press his application for an extension of the caveat.
Mr Papotto has raised a question of whether there is any need to extend the caveat given the now lack of any involvement of the Public Trustee. I am satisfied that under the provisions of the TLA, it is necessary to consider and resolve the notice that has been issued, otherwise the caveat will lapse at midnight tonight. However, I accept that the lack of involvement by the Public Trustee, and the lack of any pressing need to sell the Property, is a matter which is relevant to my consideration of the balance of convenience, and I will consider that in due course.
Legal principles
Under s 137 of the TLA, a person claiming any estate or interest in land under the operation of the TLA may lodge a caveat with the Registrar. The purpose of a caveat against dealings is to operate as an injunction to the Registrar to prevent registration of dealings forbidden by the caveat until notice is given to the caveator so that he or she has an opportunity to oppose such registration.[1]
[1] Leros Pty Ltd v Terara Pty Ltd [1992] HCA 22; (1992) 174 CLR 407, 419.
Section 138C (2) of the TLA provides for the Supreme Court's powers when a caveator applies to the Supreme Court for an order extending the operation of a caveat. It is not necessary to set out the terms of that section.
The principles applicable to an application to extend a caveat are well settled and were summarised in Bashford v Bashford,[2] and in Bride v Registrar of Titles[3] and have been applied in numerous decisions of this court. There is no need to restate these principles in full here.
[2] Bashford v Bashford [2008] WASC 138 [42] - [50].
[3] Bride v The Registrar of Titles [2015] WASC 11 [12] - [16].
Essentially, there are two questions for determination.
(a)First, has the caveator demonstrated that their claim has or may have substance or, as it is sometimes put, has the caveator established that there is a serious question to be tried in respect of the estate or interest in the land claimed?
(b)Second, does the balance of convenience favour the extension of the operation of the caveat?
The two questions are interrelated. The court must balance the injustice that might be suffered by the proprietor if the caveat were to remain against the injustice that might be suffered by the caveator if the caveat is removed.
Whether the applicant's claim to an interest in the land has or may have substance
Mr Papotto's claimed interest in the Property is recorded on the caveat as being an 'equitable interest in the property as beneficiary'.
The basis of Mr Papotto's claimed interest is recorded as:
the Gift Deed document signed by Nunziata PAPOTTO also known as Nunziatina PAPOTTO dated 26 August 2023, agreement to gift the property [Redacted] Bayswater, the beneficiary being Sam PAPOTTO
Mr Papotto has sworn and filed a number of affidavits outlining the basis of his claim. It is not necessary to refer to all aspects of these affidavits, but the key relevant facts underpinning Mr Papotto's claim are that:
(a)Mrs Papotto was discharged from RPH in April 2023 after having COVID, and Mr Papotto stayed with her for nine days and nights to assist her;
(b)after this, Mrs Papotto became scared and lonely living on her own and was continuously asking Mr Papotto to stay with her. Mr Papotto did so on some occasions but it was difficult as he had his own home and family;
(c)no other family members, including other children of Mrs Papotto, would or could stay with Mrs Papotto;
(d)at a family lunch on 1 June 2023 to celebrate Mrs Papotto's 95th birthday at which some family members were present, it was suggested that Mr Papotto and his family move in with Mrs Papotto;
(e)Mrs Papotto also said that she wanted and would leave the Property to Mr Papotto and asked Mr Papotto to bring her the papers and she will sign over the house to Mr Papotto;
(f)Mr Papotto attaches to his affidavit evidence a letter from his sister Rosa Zonato, dated 18 June 2024, confirming that this conversation took place;
(g)Mr Papotto deposes that on 18 August 2023, Mrs Papotto signed a document (which is attached to his affidavit) which contains wording in English and Italian. The English wording states:
I, Nunziata Papotto, of [Redacted] Bayswater, hereby authorise my son Sam Papotto to instruct a solicitor to prepare the following documents:
(1) an enduring power of attorney in the donee name of Sam Papotto
(2) a gifting deed and transfer of land document for the property
(h)Mr Papotto deposes that on 26 August 2023, Mrs Papotto signed a document he describes as a Deed, which contains wording in English and Italian. The English wording states that:
I, Nunziata Papotto of [Redacted] Bayswater, hereby state that:
(1) I wish to gift to my son Sam Papotto the property free from any claims that may arise
(2) the gift is for my son and his family, because they have promised to look after me until I die in the home I have gifted him
(3) I wish for my solicitor to make necessary changes to my will to exclude any whole estate and appoint my son Sam Papotto to be the executor and trustee of my will
(4) I have made this decision of my own free will without threats, intimidation, duress, or collusion from anyone
(5) I've made this decision with the knowledge and understanding of the consequence of making this decision.
(i)Mr Papotto also deposes that he has a recording of Mrs Papotto in mid-June 2023 in which Mrs Papotto indicates that she understood her decision to gift the Property;
(j)Mr Papotto moved into the Property at the end of August 2023; and
(k)a guardianship order and an administration order were first made in relation to Mrs Papotto by the State Administrative Tribunal on 29 September 2023.
No other formal steps were taken to give effect to the proposed gift of the Property to Mr Papotto. No transfer form was prepared or signed or registered with Landgate.
Mr Papotto's claim for an interest in the Property is on the basis that his mother gifted him the Property and that gift was perfected. Further, Mr Papotto refers to Mrs Papotto being estopped from denying the gift of the Property.
The High Court has outlined the legal principles in relation to the when an equitable interest in property will arise by way of a gift in the decision in Corin v Patton.[4] It is not necessary to set out all relevant passages of this decision, but the key principles can be found at pages 546 ‑ 559 (Mason CJ and McHugh J) and pages 572 ‑ 583 (Deane J).
[4] Corin v Patton [1990] HCA 12 (1990); 169 CLR 540.
For present purposes, it is sufficient to observe than an equitable interest will only arise if the gift has been perfected; that is the donor (in this case Mrs Papotto) must have done everything which it was necessary for her to have done to effect a transfer of legal title. If the donor's conduct has failed to meet that standard, then the gift is imperfect and equity will not make its remedies available to perfect the gift, remedies which include recognition of an equitable interest of the recipient in the gift. What is required is that there be a voluntary alienation of the property such that the transfer is within the control of the recipient of the gift, and beyond the control, recall intervention or need for further assistance of the donor. This is because a gift, until perfected, could be withdrawn by the donor.
Deane and Rich JJ in the High Court decision of Brunker v Perpetual Trustee Co Ltd,[5] considered what this meant in the context of Torrens system land, as is the case here. Deane J held that at a minimum an executed transfer of land form is required. See also the decision of Malcom CJ in Dean v Lord.[6]
[5] Brunker v Perpetual Trustee Co Ltd [1937] HCA 29; (1937); 57 CLR 555, 602 - 603.
[6] Dean v Lord (1991) 3 WAR 325, 240 - 242.
In the present case, Mr Papotto has difficulties in demonstrating that his claim has or may have substance, or that there is a serious question to be tried.
Accepting for now that Mrs Papotto did say at the family lunch that she wanted to gift the Property to Mr Papotto, and accepting for now that she signed the documents attached to Mr Papotto's affidavits, this falls short of what the cases I have referred to provide is required to alienate the Property and perfect the gift. No transfer of land form was completed and signed by Mrs Papotto, or anyone. It had not been provided to Mr Papotto and no duplicate certificate of title (if one exists) had been provided. These matters raise a real question as to whether at any time the gift could have been withdrawn by Mrs Papotto.
Mr Papotto has referred me to the case of Rowland v Stevenson[7] in support of his application. I have reviewed that authority. That case concerned personal property (being a boat) and not real or Torrens system property.
[7] Rowland v Stevenson [2005] NSWSC 325.
Mr Papotto's affidavits also make reference to estoppel - and Mrs Papotto being estopped from denying the gift. Again, Mr Papotto has difficulties in demonstrating that his claim has or may have substance or that there is a serious question to be tried in this regard. A requirement of an estoppel is that, in this case, Mr Papotto has relied on the representation made and has acted to his detriment. Even accepting for now that Mr Papotto relied on the representation made, and moved in with Mrs Papotto, Mr Papotto has not filed any evidence of any detriment he has suffered in this regard. There is no evidence that, for example, he has sold his own house in reliance on the representation.
Balance of convenience
There are a number of factors which are applicable in relation to the balance of convenience.
First, the strength of Mr Papotto's case. As I have outlined, I do not consider Mr Papotto's case to be strong and there are a number of difficulties with it. However, following the death of Mrs Papotto, there does not appear to be any prejudice to her if the caveat is not extended. Probate will need to be obtained in relation to Mrs Papotto's estate and, subject to the terms of her will, her estate administered.
I am informed today, by Mr Papotto, that the executors to her estate are her four children, which includes Mr Papotto. It may be that time is needed for the executors to determine the way forward and whether they wish to look into removing the caveat, or whether some other mechanism for resolving the matter is appropriate. It is also possible that a Family Provision Act 1972 (WA) claim may be made in the future. These are matters which are unknown.
However, the situation has certainly moved on from when the Public Trustee, on behalf of Mrs Papotto and as her administrator, asked the Registrar of Titles to issue the notice to Mr Papotto, stating that the caveat would lapse within 21 days after the notice was served, unless Mr Papotto obtained an order from the Supreme Court extending the operation of the caveat.
At the time the notice was issued, different factors relevant to the balance of convenience were in existence, in particular, the need from the Public Trustee's perspective to sell the property, so as to pay for Mrs Papotto's care in a residential facility. Obviously, that situation no longer exists today.
I have also considered the fact that Mr Papotto has filed an undertaking as to damages in the usual form.
I have also considered the fact that any decision not to extend the caveat would not prevent Mr Papotto from taking legal action to vindicate his claim to the property or prevent Mr Papotto from undertaking any applications in the context of the administration of Mrs Papotto's estate.
However, it is fair to say that the position has changed significantly since the application was made by the Public Trustee.
This brings me to the relevance of the removal of the Public Trustee. Whilst I remain satisfied that it is necessary to deal with the application that was originally made by the Public Trustee, so as to address what will happen to the caveat, Mr Papotto has submitted that the removal of the Public Trustee means that it is no longer pressing that his caveat should be removed.
That is, the factual circumstances underpinning the request for the removal of the caveat no longer exist.
I consider this is a factor which is relevant to the exercise of the balance of convenience. In these circumstances, it would seem to me that there is not necessarily any prejudice for the caveat to remain on the title presently, whereas there is potential prejudice to Mr Papotto if the caveat were to be removed. However, I certainly accept that it is open to the executor of the estate to consider the position going forward.
I understand that the executor consists of four individuals and therefore decisions will need to be made. It may be that the balance of convenience would change in the future, once considerations have been given to dealing with Mrs Papotto's estate.
In those circumstances, I do consider that the position here is somewhat unusual from the usual type of caveat extension before the court, and I am satisfied, in all the circumstances, that the balance of convenience does favour extending the caveat until further order of the court.
For the purposes of the record, I should make it clear that it is open to the executors of the estate to consider the position going forward, and it may therefore be necessary in the future for a further order to be requested to be issued in relation to the caveat. If that was to be the case, that application would be considered by the court at an appropriate time. That does, of course, not mean that any request for removal of the caveat must be made. It may be that the matter is resolved as part of dealing with Mrs Papotto's estate by the executors.
Accordingly, for these reasons, I will extend the caveat until further order of the court. I will also grant liberty to apply in the event that any changes in circumstances arise.
It is also necessary to record that, given the changing circumstances on this matter, it is not necessary to consider or resolve the Public Trustee's application which it made on 9 May 2025. At the previous hearing in relation to this matter when the Public Trustee was removed as a party to this matter, the question of the Public Trustee's costs was considered and dealt with on that occasion.
I will therefore make the following orders:
1.The operation of Caveat Q228136 lodged on 27 November 2024 registered against the whole of the land comprised in Certificate of Title, Volume 1298, Folio 615 be extended until further order of the court.
2.There be liberty to apply.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MA
Associate to the Hon Justice Seaward
24 JULY 2025
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