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.

In the case of PESTKOWSKI & ANOR -v- CONIGLIO & ANOR, the plaintiffs, Stanislaw and Anna Pestkowski, sought to challenge the registration of property titles against the first defendant, Benito Francesco Coniglio, and the second defendant, the Registrar of Titles. The dispute centred around the withdrawal of a caveat lodged by the plaintiffs against the property. The Supreme Court of Western Australia, presided over by Master Bredmeyer, was tasked with resolving the procedural errors that had occurred during the withdrawal of the caveat.

The primary legal issue before the court was whether the application by the plaintiffs should be struck out due to their failure to withdraw the caveat by the specified date, and whether the fault lay with the plaintiffs or their solicitor. The court had to consider the impact of the solicitor's errors on the plaintiffs and decide on the appropriate remedy and costs.

The court held that the fault in not withdrawing the caveat lay with the plaintiffs' solicitor, who had signed the withdrawal document on behalf of the plaintiffs without obtaining the necessary signatures from both of them. The court noted that the Titles Office required both plaintiffs to sign the withdrawal, and the failure to do so resulted in the withdrawal lapsing. Additionally, the plaintiffs' solicitor did not inform the defendants' solicitors of these issues, which further compounded the problem. Despite the serious default, the court decided not to strike out the plaintiffs' action as it did not wish to penalise the plaintiffs for the faults of their solicitor. Instead, the court ordered the second defendant to remove the caveat and directed the plaintiffs' solicitors to pay the defendants' costs of the application on an indemnity basis.

The final orders of the court were to remove the caveat from the property titles and for the plaintiffs' solicitors to pay the defendants' costs on an indemnity basis. This decision underscored the importance of procedural compliance and the potential consequences of not adhering to court orders.

PESTKOWSKI v Coniglio

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

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