Scutti v Timperio - [2025] WASC 381

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   SCUTTI -v- TIMPERIO [2025] WASC 381
CORAM:   SOLOMON J
HEARD:   26 AUGUST 2025
DELIVERED          :   26 AUGUST 2025
PUBLISHED           :   11 SEPTEMBER 2025
FILE NO/S:   CIV 2021 of 2024
BETWEEN:   GIUSEPPE ALESSANDRO SCUTTI
First Plaintiff
PAOLA SCUTTI
Second Plaintiff
AND
SILVANA ROSA TIMPERIO
First Defendant
CARMELA SCUTTI
Second Defendant

Catchwords:

Application for judgment on admissions - O 30 r 3 Rules of the Supreme Court 1971(WA) - The proper exercise of discretion - Whether dispute hypothetical - Application for declaratory relief - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 18, r 16, O 30 r 3

Supreme Court Act 1935 (WA), s 25(6)

Result:

Judgment for the plaintiffs and declaratory relief in the terms sought

Category: B

Representation:

Counsel:

First Plaintiff	:	Mr S R Sirett
Second Plaintiff	:	Mr S R Sirett
First Defendant	:	Mr P G McGowan
Second Defendant	:	No appearance

Solicitors:

First Plaintiff	:	Thomson Geer - Perth
Second Plaintiff	:	Thomson Geer - Perth
First Defendant	:	Rowley Legal
Second Defendant	:	Blatchfords

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

Acciona Industrial Australia Pty Ltd v Kwinana WTE Project Co Pty Ltd [2022] WASC 380
Halford v Halford [No 2] [2018] WASC 303
Moon v Mun [2013] NSWCA 217

SOLOMON J:

(This judgment was delivered extemporaneously on 26 August 2025 and has been edited from the transcript)

Background

This is an application brought by chamber summons dated 3 February 2025. The plaintiffs' application is made under O 30 r 3 of the Rules of the Supreme Court1971 (WA) for judgment to be entered on grounds of admissions made in the first defendant's amended defence dated 13 November 2024 (Amended Defence). The plaintiffs seek a declaration in the following terms:[1]
Of the sum of $2,750,000.00 paid by the Commissioner of Main Roads for 614 Wanneroo Road, Pearsall, Western Australia:
(a)the plaintiffs are entitled to receive, and have received the sum of $1,237,500.00;
(b)Antonio Giuseppe Scutti was entitled to receive the sum of $962,500.00 and has received the sum of $396,341.50;
(c)the estate of Antonio Giuseppe Scutti is entitled to receive a further sum of $566,158.50; and
(d)the second defendant is entitled to retain the sum of $550,000.00.
[1] Chamber Summons, 3 February 2025, 2.
The background to the matter may be summarised in this way. The first plaintiff and the first defendant are brother and sister. They are two of the four children of their mother, the second defendant. The second defendant is a person not capable of managing her own affairs. Orders were made by a registrar to that effect in these proceedings, but in any event, a notice to abide was filed on behalf of the second defendant.[2] The second plaintiff is the first plaintiff's wife.
[2] Orders Registrar Nelson, 28 November 2024.
Antonio Giuseppe Scutti (Antonio) was another brother, and son to the second defendant. Antonio passed away in March 2024. The first defendant is the executor of Antonio's estate.
The first plaintiff and the first defendant are also both attorneys managing the affairs of the second defendant. Most relevantly for present purposes, they are the attorneys on the bank account of the second defendant into which the moneys referred to below and in the amended statement of claim dated 8 November 2024 (Statement of Claim) were paid.[3]
[3] Statement of Claim [19.2].
Essentially, there were two lots of land referred to in the evidentiary material as 'Lot 1' and 'Lot 8'. Lot 1 was owned in the following proportions: 45% by the plaintiffs jointly, 35% by Antonio and 20% by the second defendant.
Both lots were compulsorily resumed, and compensation payments were agreed to be paid by the Commissioner of Main Roads. Relevant agreements were entered into, pursuant to which the total amount of $11,250,000 was paid into the account of the second defendant for Lot 1, Lot 8 and costs. The documentation made clear that the breakdown in payments was:[4]
(1)$7,900,000 for Lot 8;
(2)$2,750,000 for Lot 1; and
(3)$600,000 for costs.
[4] Affidavit of James Jordan Allison, 3 February 2025, JJA-1, 11 (Allison Affidavit).
It is not in dispute that the costs were attributed to the second defendant's account, as she had borne the costs of the process.[5]
[5] Allison Affidavit, JJA-1, 12.
The circumstances leading to the initial dispute are set out succinctly in the Statement of Claim, as follows:[6]
[6] Statement of Claim, 5-8.
13.On or around 22 May 2018, Carmela, Giuseppe, Paola and Antonio (together the Claimants) and the Commissioner of Main Roads (Commissioner) entered into an agreement (Lot 1 Section 168 Agreement) pursuant to which the Commissioner in accordance with section 241 of the Land Administration Act 1997 (Act).
…
15.In or around 2018, the Lot 1 Section 168 Agreement was varied such that the Commissioner agreed to pay the Advance Payment to the Claimants, or the Claimants' nominee forthwith upon acceptance by Landgate of a taking order (Deed of Variation).
…
17.On or around 19 January 2023, the Claimants and the Commissioner entered into a Deed of Settlement and Release (Deed of Settlement and Release) pursuant to which the Claimants acknowledged receipt of the Advance Payment and the Commissioner agreed to pay the Claimants the balance of the compensation with respect to the Commissioner's acquisition of Lot 1
…
19.Pursuant to the Lot 1 Section 168 Agreement, the Deed of Variation and the Deed of Settlement and Release, in the period from 9 August 2018 to 23 January 2023:
19.1Lot 1 was transferred to the State of Western Australia on or around 9 August 2018;
19.2the Commissioner paid the sum of $2,750,000.00 to the Claimants for Lot 1 (Lot 1 Land Compensation) by way of the following payments:
(a)$1,500,000.00 (the Advance Payment) on 9 August 2018 by way of:
(i)a payment of $792,683.00 to the bank account of N.Scutti & Sons (being an account controlled by Giuseppe, Paola, Carmela and Antonio and held with Commonwealth Bank of Australia Ltd); and
(ii)a payment of $707,317.00 to Carmela's bank account held with Commonwealth Bank of Australia Ltd;
(b)$1,250,000.00 (the final compensation payment) on 23 January 2023 by way of a payment to Carmela's bank account.
20.Each Claimant is entitled to receive, from the Lot 1 Land Compensation paid by the Commissioner, an amount proportionate to each Claimants’ [sic] share in Lot 1 as pleaded at paragraph 12 above as follows:
20.1as to Carmela's 20% interest in Lot 1, the sum of $550,000.00;
20.2as to Giuseppe's 25% interest in Lot 1, the sum of $687,500.00;
20.3as to Paola's 20% interest in Lot 1, the sum of $550,000.00; and
20.4as to Antonio's 35% interest in Lot 1, the sum of $962,500.00.
…
22.Various disputes have arisen been between Giuseppe (as Attorney) and Silvana (as Attorney), in their capacities as joint and several attorneys of Carmela, and between Giuseppe and Paola (on the one hand) and Silvana (on the other hand), in her personal capacity further or alternatively in her capacity as Silvana (as Attorney) and in her capacity as executrix of Antonio's Estate in relation to the distribution of, and Claimants' share entitlement to, the Lot 1 Land Compensation.
The nub of the dispute that led to these proceedings was whether there was an agreement between the members of the family that, notwithstanding the percentage entitlements on the title to Lot 1, the whole of the compensation in respect of both Lots 1 and 8 was to be divided evenly between the family members. The first defendant and her husband, Mr Timperio, alleged there had been an agreement in those terms, in correspondence that took place prior to the commencement of this action.[7] The plaintiffs' position was that the entitlements in respect of the compensation paid for Lot 1 were to be determined in accordance with the respective interests of the registered proprietors of Lot 1, as recorded on the title.[8] The plaintiffs, in accordance with their position, maintained that there were therefore additional moneys owing to them to satisfy their entitlement in respect of the compensation payment for Lot 1. These moneys were held in the account of the second defendant (for which, as noted, the first plaintiff and first defendant are the attorneys).
[7] Allison Affidavit, JJA-1, 5-9.
[8] Allison Affidavit, JJA-6, 28.
Plainly, those two positions produce different outcomes because if there had been an agreement to divide the proceeds of both Lot 1 and Lot 8 equally, that would produce a different result than if the agreement to divide the proceeds equally (or some other arrangement) applied only to Lot 8.
In mid-March 2024, the first plaintiff, exercising his powers as an attorney in respect of the second defendant's account, paid what he considered to be the plaintiffs' entitlement to the payment for Lot 1, in the amount of $841,158.50.[9] That appears to have precipitated the dispute. The first defendant, and it appears also her husband Mr Timperio, asserted that the agreement, as I have explained at [9], applied to Lot 1 and therefore the entitlement was not as the plaintiffs asserted, and the first plaintiff's removal of $841,158.50 from the account of the second defendant was unjustified.[10]
[9] Allison Affidavit, JJA-1, 7-8.
[10] Allison Affidavit, JJA-1, 5-6.
The first defendant, both directly and through her lawyer, made a number of explicit and implicit assertions of impropriety against the first plaintiff for having made that withdrawal.[11] Those allegations were made in the context of the first defendant's assertion that by reason of the alleged agreement, the plaintiffs were not entitled to $841,158.50 in respect of Lot 1.
[11] Allison Affidavit, JJA-1, 18.
A further issue arose that was ventilated in that pre-litigation correspondence. That is that Mr Timperio (the first defendant's husband) through Rowley Legal, asserted that he was entitled to be paid for his efforts in overseeing or contributing to the outcome of the very significant compensation payment. Through his lawyer, he asserted the existence of an agreement that he would be paid or, in the absence of an agreement, some form of estoppel or, alternatively, a claim in quantum meruit.[12] The basis of this claim is not expressed in particular detail in the correspondence.
[12] Allison Affidavit, JJA-3, 17.

Application for judgment to be entered on an admissions basis

In this application, the plaintiffs rely on submissions dated 12 March 2025, responsive submissions dated 21 March 2025 and an affidavit of James Jordan Allison dated 3 February 2025. Mr Allison is a solicitor engaged by the plaintiffs. Essentially, that affidavit annexes the aforementioned pre-litigation correspondence between the first plaintiff, the first defendant and Mr Timperio, which took place between March and June 2024. [13]
[13] Allison Affidavit, JJA-1, 5-9.
Thereafter, the correspondence is taken up by the parties' respective solicitors, that is, Thomson Geer, for the first and second plaintiff, and Rowley Legal for the first defendant and for Mr Timperio. It is evident from the exchange of emails, and from the exchange of correspondence, that a dispute arose between the parties regarding the alleged agreement and the entitlements to the compensation payment for Lot 1, as summarised above.[14]
[14] See [9]-[12].
In the context of the dispute embodied in the correspondence, the plaintiffs expressed concerns about the allegations that had been made against them. In particular, the first plaintiff was concerned about explicit or implicit allegations of wrongdoing in the removal of funds from the account of the second defendant (his mother), in accordance with what he considered to be the plaintiffs' entitlement in respect of Lot 1. In the exchange of correspondence, the plaintiffs required the first defendant to resile from the position she asserted in the correspondence, failing which, the plaintiffs said they would issue proceedings to have the matter clarified and determined.[15]
[15] Allison Affidavit, JJA-2, 14.
The matter was not resolved, and the plaintiffs issued these proceedings in August 2024. The Statement of Claim, as outlined at [1], essentially sought declaratory relief in respect of the various entitlements to Lot 1.
The proposed declaration sought clarification, by declaratory relief, in respect of not only the plaintiffs' entitlements, but also the entitlements of Antonio's estate. The plaintiffs contended that when an assessment was made of the entitlements to Lot 1, Antonio's estate was entitled to a further sum of $566,158.50.[16]
[16] Allison Affidavit, JJA-2, 13.
The first plaintiff maintained an interest in the declaration concerning Antonio's estate because, as noted above at [3], that money was being held, by the second defendant, in an account in respect of which the first plaintiff was jointly responsible. The first plaintiff therefore wished it to be clarified that the money he was jointly holding as attorney in fact belonged to the estate of his late brother, Antonio.[17]
[17] Allison Affidavit, JJA-2, 14; The second defendant acts as the sole executrix of the estate of Antonio Giuseppe Scutti. The proceeds for Lot 1 and Lot 8 were, in their entirety, placed into the account of Carmel Scutti, over whom the first plaintiff has joint power of attorney. It is in respect of this that the first plaintiff maintains an interest in these funds.
The final and relevant version of the defence was a re-amended defence dated 25 March 2025 (Re‑Amended Defence). It is plain from the Re‑Amended Defence that the first defendant resiled from the position that emerged in the pre-litigation correspondence. That is, it is plain that the first defendant no longer asserted an agreement of the sort referred to at [9], which would affect or disturb the entitlements to the compensation of Lot 1 in accordance with the interests recorded on the title.[18]
[18] Re-Amended Defence [8(a)].
I pause to observe that there was no issue on the pleadings of any dispute as to the entitlements to the balance of the second defendants' moneys, including moneys paid in respect of Lot 8.
The first defendant objects to judgment and to the declarations sought on the basis that, on the pleadings in this matter, there is no longer any controversy.[19] Although there was a controversy as recorded and reflected in the correspondence, the Re‑Amended Defence makes plain that there is no longer any controversy in relation to the entitlements to compensation relating to Lot 1. There is, therefore, no longer any assertion of impropriety in respect of the first plaintiff having taken funds which he contended he and the second plaintiff were owed from the account of the second defendant. The first defendant therefore says that no justiciable issue arises.[20]
[19] Outline of Submissions of First Defendant, 19 March 2025 [4.6] (Defendant's Submissions).
[20] Defendant's Submissions [4.6]-[4.7].
In respect of the declaratory relief sought in relation to the moneys owing to Antonio's estate, the first defendant also objects to the declaration on the basis that she is on notice of the intention by her husband, Mr Timperio, to make a claim for the money Mr Timperio says he ought to be paid. The first defendant says, therefore, acting prudently, she ought to hold back those moneys from Antonio's estate in the account of the second defendant to ensure that there are sufficient funds to cover such a claim.[21]
[21] Defendant’s Submissions [5.5].
The first defendant also points to the fact that there is no legal impediment to the first plaintiff paying the money to the estate of Antonio, if the first plaintiff considers that that is the proper course.[22] The prospective claim referred to by the first defendant in respect of her husband is said to be a claim by way of quantum meruit for work done as an agent for, inter alia, the first and second plaintiffs. Again, there is nothing further said about that claim which has at this stage materialised.[23]
[22] Defendant’s Submissions [5.6].
[23] Re-Amended Defence [8 (d) - (e)].
A further objection of the first defendant to the declaration in respect of moneys to be paid from the second defendant's account to Antonio's estate, is that the first defendant is awaiting a private ruling from the Australian Taxation Office in relation to any exposure that Antonio's estate may have to pay capital gains tax.[24]
[24] Re-Amended Defence [8 (d) - (e)].

Relevant legal principles

Principles in relation to an application for judgment on admissions under O 30 r 3 of the Rules was set out at [40] - [43] by the Court of Appeal in New South Wales in Moon v Mun [2013] NSWCA 217. Those principles were, in short form, summarised by Allanson J in Halford v Halford [No 2] [2018] WASC 303 at [30]:
The power to grant judgment on admissions should be exercised with great caution and only in a clear case.
The power to award judgment on admissions on the pleadings is properly exercisable only where the court can see that a clear and unanswerable case is advanced on the pleadings, with the position so decisively depicted and the correct outcome so unambiguously obvious that there is simply no need for any issue to go to trial. The evaluative question relevant to exercise of the discretion is whether it is just to award judgment without regard to the merits of the parties' contentions.
(citations omitted)
In relation to declaratory relief, the court's power to grant declaratory relief arises from s 25(6) of the Supreme Court Act 1935 (WA), and O 18 r 16 of the Rules. I had occasion to review the principles in relation to declaratory relief at some length in Acciona Industrial Australia Pty Ltd v Kwinana WTE Project Co Pty Ltd [2022] WASC 380 (Acciona) at [100]-[114]. It is not necessary to set out those passages here.
It is sufficient to observe, in summary, that the power of the court to grant declaratory relief is a broad power. Importantly, the determination must be in relation to a real question, not a hypothetical or abstract issue. The party seeking the declaratory relief must have a real interest in it, and there needs to be a proper contradictor.
Having set out the background facts and the general principles, I turn now to the determination of the application.

Determination of the application

It is clear that there was a dispute between the parties emerging from the correspondence, and that the plaintiffs were within their rights, and quite understandably, issued proceedings to quell the controversy about their entitlement to compensation payments from Lot 1, and in addition, to quell the controversy and clarify allegations that the first plaintiff had acted improperly. No criticism can be made, therefore, of the plaintiffs for issuing the proceedings.
The question is whether, the first defendant having resiled from her position and made unambiguous admissions contained in the Re‑Amended Defence, the matter remains an appropriate matter for a judgment to be entered on grounds of admissions. Counsel for the first defendant submitted that the more appropriate course in these circumstances is not to seek judgment, but to discontinue on terms that presumably include an application for costs. The first defendant's counsel did not concede that, if such an application had been made, the first defendant would have agreed that the plaintiffs were entitled to their costs.
I accept that a judgment on admissions should only be given in the clearest of circumstances, and that care and caution is to be exercised in granting judgment on that basis. However, in my view, this is such a clear case. As I have said, the court's power to order declaratory relief is broad. In my view, there was a real controversy, and the plaintiffs are entitled to have their position clarified through the court's judgment in all the circumstances.

The controversy is not hypothetical or abstract. It may well be that the controversy came to an end with the filing of the Re‑Amended Defence, which contained unequivocal admissions. But in my respectful view, that is not a reason for the plaintiffs to be denied the judgment they seek in these proceedings. In circumstances where the plaintiffs' entitlements were contested, and allegations of impropriety were at least implicitly if not explicitly made, there is utility in making the declarations sought by the plaintiffs, notwithstanding the unambiguous admissions reflected in the Re-Amended Defence.
In my view, it is not necessary to set out the particular paragraphs that form the basis of the first defendant's admissions. In saying that, I record in these reasons that the admissions in the defence to [1] - [20] of the Statement of Claim form the basis for the plaintiffs' entitlement to judgment.

Conclusion

It seems to me, therefore, that the plaintiffs are entitled to judgment.
I then turn to the question of the form of the orders. For the purposes of this application, the plaintiffs provided a minute dated 22 August 2025 and an amended minute dated 25 August 2025. In my view, the appropriate order is reflected in the terms of the plaintiffs' minute without the additional amendments, that is, the minute of 22 August 2025.
That addresses the declaration sought in 1(i).
I turn then to the declarations sought in 1(ii) and 1(iii) which concern the estate of the late brother, Antonio. The first defendant, in her Re-Amended Defence and in submissions advanced on her behalf by her counsel, referred to two matters; that is, the prospective claim of her husband, and the uncertainty in relation to the outcome of a ruling sought in the Australian Taxation Office.[25]
[25] Re-Amended Defence [8 (d)] - (e)].
In my view, neither of those matters are an impediment to a declaration of the entitlement of the estate of Antonio to the funds held in the second defendant's account. Should there be a liability arising from the claim that may be brought by Mr Timperio, or a liability for capital gains tax arising from the ruling of the Australian Taxation Office, these are matters that will be visited upon the estate of Antonio and will need to be managed by the first defendant as Antonio's executor. But none of those matters seem to me to create any barrier to the declarations that are sought.
The plaintiffs also seek orders that the action be otherwise dismissed, and I agree that that is an appropriate order.
Accordingly, I will give judgment in the terms sought in the plaintiffs' minute of 22 August 2025, absent the amendments of 25 August 2025.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LZ
Associate to the Honourable Justice Solomon
11 SEPTEMBER 2025