Perpetual Trustees Victoria Ltd v Scaffidi - [2010] WASC 401

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: PERPETUAL TRUSTEES VICTORIA LTD -v- SCAFFIDI [2010] WASC 401

CORAM: MASTER SANDERSON

HEARD: 28 OCTOBER 2010

DELIVERED : 22 DECEMBER 2010

FILE NO/S: CIV 1376 of 2008

BETWEEN: PERPETUAL TRUSTEES VICTORIA LTD
Plaintiff
AND
MARIA SCAFFIDI
Defendant
GUISEPPE DIEGO SCAFFIDI
Third party

Catchwords:

Person under disability - Settlement agreement approved by court - Agreement not performed in part - Whether one party able to terminate agreement - Effect of court approval

Legislation:

Fair Trading Act 1987 (WA), s 10(1)
Transfer of Land Act 1893 (WA), s 63

Result:

Agreement terminated

Category: B

Representation:

Counsel:

Plaintiff:     Dr J T Schoombee
Defendant:     Mr B W Ashdown
Third party                  :     No appearance

Solicitors:

Plaintiff:     Downings Legal
Defendant:     Public Trustee (WA)
Third party                  :     No appearance

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

Arabian v Tufnall and Taylor Ltd [1944] 1 KB 685
Dey v Victorian Railways Commissioners (1948) 78 CLR 62
McDermott v Black (1940) 63 CLR 161
Wood v Public Trustee (1995) 16 WAR 58

MASTER SANDERSON: This is the return of two chamber summonses. The first in time is the defendant's chamber summons of 11 August 2010. The plaintiff's chamber summons was lodged 14 October 2010. Effectively, both chamber summonses seek to agitate the same question. Before going to the relief sought by the parties, it is necessary to explain the facts which led to these applications. These facts are not in dispute.
In this action, the plaintiff sought to enforce against the defendant a mortgage registered in favour of the plaintiff over the defendant's property in Joondanna. On the plaintiff's case, default under the mortgage occurred as at January 2008. The default went unremedied, despite a notice of default and the plaintiff claimed it was entitled to possession of the property under the terms of the mortgage.
The defendant lodged a defence. She alleged that she did not receive any of the money advanced pursuant to the mortgage and that she never signed the mortgage or related security documents. By par 3.4 of her defence, she alleges the signature which purports to be her signature on the mortgage documentation is a forgery.
The defendant also advanced a counterclaim. She said she suffered from a 'special disability' as she was not able to read, write or speak English properly and because she was elderly and commercially inexperienced. She alleged the plaintiff knew of these matters constituting the special disability, but did not take appropriate steps to properly inform her of the true import of the mortgage and its security implications. In its reply and defence to counterclaim, the plaintiff denied the essentials of the defendant's case and pleaded reliance on the indefeasibility of title guaranteed pursuant to s 63 of the Transfer of Land Act1893 (WA).
In the third party proceedings, the defendant sued her son. Her third party claim against him is based on the grounds that the third party, in effect, granted the mortgage on her behalf without her…

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

Case: [2010] WASC 401
Decision Date: 22 DECEMBER 2010

CaseChat Overview and Summary

The case of Perpetual Trustees Victoria Ltd v Scaffidi involved a dispute between Perpetual Trustees Victoria Ltd, the trustee of a trust, and Scaffidi, a beneficiary. The central issue revolved around a settlement agreement approved by the court, which had not been fully performed by the parties involved. Specifically, Scaffidi had not complied with certain obligations under the agreement. The question before the court was whether Perpetual Trustees Victoria Ltd could terminate the settlement agreement due to the partial non-performance by Scaffidi and, if so, what the effect of the court's prior approval of the agreement would be.

The court examined the terms of the settlement agreement and the extent to which they had been fulfilled. It considered the legal principles governing the enforcement of court-approved settlement agreements and whether a party could terminate such an agreement when the other party had failed to perform. The court also looked at the implications of the court's prior approval of the agreement and whether that approval could be reconsidered in light of the non-performance. After careful analysis, the court determined that the agreement could indeed be terminated by the trustee due to the beneficiary's non-compliance. However, it also found that the prior court approval of the agreement would remain valid and binding, and any termination would not negate the obligations already fulfilled by the parties.

In conclusion, the court held that Perpetual Trustees Victoria Ltd was entitled to terminate the settlement agreement because of Scaffidi's non-performance. However, the court's previous approval of the agreement would still have legal effect, and the obligations that had been met by both parties would remain valid. This decision underscores the importance of strict compliance with court-approved settlement agreements and the consequences that may arise from failure to perform. The court's ruling provided clarity on the enforceability of such agreements and the rights of the parties involved when one party does not fulfil their obligations.

Orders