PESTKOWSKI v Coniglio

[1999] WASC 89

PESTKOWSKI & ANOR -v- CONIGLIO & ANOR [1999] WASC 89

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASC 89
Case No:	CIV:1866/1995	Heard:	1 JULY 1999
Coram:	MASTER BREDMEYER	Delivered:	1/07/99
No of pages:	3	Judgment Part:	1 of 1
Result:	Application allowed in part
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Parties:	STANISLAW PESTKOWSKI ANNA PESTKOWSKI BENITO FRANCESCO CONIGLIO REGISTRAR OF TITLES
Catchwords:	Practice and procedure
Legislation:	Nil
Case References:	Nil Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : PESTKOWSKI & ANOR -v- CONIGLIO & ANOR [1999] WASC 89 CORAM : MASTER BREDMEYER HEARD : 1 JULY 1999 DELIVERED : 1 JULY 1999 FILE NO/S : CIV 1866 of 1995 BETWEEN : STANISLAW PESTKOWSKI

ANNA PESTKOWSKI
Plaintiffs

AND

BENITO FRANCESCO CONIGLIO
First Defendant

REGISTRAR OF TITLES
Second Defendant

Catchwords:

Practice and procedure

Legislation:

Nil

Result:

Application allowed in part

(Page 2)

Representation:

Counsel:

Plaintiffs : Mr R K Malhotra
First Defendant : Ms S G England
Second Defendant : No appearance

Solicitors:

Plaintiffs : Margaretic Morton
First Defendant : Lawton Gillon
Second Defendant : No appearance

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

Nil

Case(s) also cited:

Nil

(Page 3)

1 MASTER BREDMEYER: Order 2 made by me on 29 March 1999 provided:

"The Plaintiffs must withdraw Caveat No. G594375 from the First Defendant's property ("Property") and unless they do so by 6 April 1999, the Plaintiffs' action be struck out."

2 The plaintiffs failed to obey that. The fault lies with their solicitor. He signed a withdrawal of caveat on 6 April 1999 on behalf of his clients. That was ineffective. The Titles Office required it to be signed by both plaintiffs. On 15 April 1999 the Titles Office issued a requisition to have the withdrawal signed by both caveators. It gave a 14-day time limit. The requisition was not attended to within that limit, so the withdrawal of the caveat lapsed. The defendants' solicitors were not informed of these problems.

3 When the plaintiffs' solicitor discovered these problems, he could not get the caveat signed by the female plaintiff as she had gone to Poland. She is due to return on 5 July 1999.

4 The default by the plaintiffs on Order 2 is serious and has caused prejudice to the defendant in extra interest costs. However, I do not propose to strike out the action because the three faults mentioned above have been of the plaintiffs solicitors and not the plaintiffs. I would not like to punish the plaintiffs for their solicitors' faults.

5 I propose to make the following orders:

1. I order the second defendant, the Registrar of Titles, to remove caveat No. G594375 against Certificates of Title, Volume 2161 folio 856 and Volume 2161 folio 857.

2. I order the plaintiffs' solicitors to pay the defendants' costs of this application on an indemnity basis to be taxed if not agreed and paid forthwith.

6 On 1 above, I have ordered the withdrawal of caveat against both titles. This may be necessary to enable the defendant to discharge the mortgage to Blackburn & Dixon Pty Ltd which is against both titles.

7 Order 2, a special order as to costs against the solicitors personally, is warranted by the serious faults mentioned above.