TAYLOR & ORS -v- GIAMPAOLO & ANOR [2004] WASC 109

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASC 109
Case No:	CIV:1014/2004	Heard:	17 MAY 2004
Coram:	MASTER NEWNES	Delivered:	27/05/04
No of pages:	7	Judgment Part:	1 of 1
Result:	Application for judgment dismissed
Category:	B
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Parties:	HOWARD RAYMOND CLIFTON TAYLOR COLIN HOWARD TAYLOR JENNIFER ELLEN BAKER DOMINIC GIAMPAOLO MARIA PEPE
Catchwords:	Practice and procedure Summary judgment Whether contract for sale of land before probate enforceable Turns on own facts
Legislation:	Administration Act 1903 (WA), s 8 Property Law Act 1969 (WA), s 33, s 34 Public Trustee Act 1941 (WA), s 9 Transfer of Land Act 1893 (WA), s 85
Case References:	Cash v Nominal Defendant (1960) 90 WN (Pt I) (NSW) 77 Duskwood Pty Ltd v Bellara Willows Pty Ltd [2002] WASCA 353 Gertsch v Roberts; Estate of Gertsch (1993) 35 NSWLR 631 Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR 57 Marist Bros Community Inc v Shire of Harvey (1995) 14 WAR 69 Mohamidu Mohideen Hadjir v Pitchey [1894] AC 437 Nagel v Hough (1927) 27 SR (NSW) 418 Sorna Pty Ltd v Flint & Anor [2000] WASCA 22 The Estate of Spencer Ex Parte Vincent (1963) 19 ABC 90 Collen v Wright (1857) 7 E&B 301 Estate of Just (No 2) (1974) 7 SASR 515 Harvell v Foster (1954) 2 QB 367 Tiverton Estates Ltd v Wearwell Ltd [1974] 1 All ER 209 Webster v Lampard (1993) 177 CLR 598 Will of Lyndon (1960) VR 112

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : TAYLOR & ORS -v- GIAMPAOLO & ANOR [2004] WASC 109 CORAM : MASTER NEWNES HEARD : 17 MAY 2004 DELIVERED : 27 MAY 2004 FILE NO/S : CIV 1014 of 2004 BETWEEN : HOWARD RAYMOND CLIFTON TAYLOR

COLIN HOWARD TAYLOR

JENNIFER ELLEN BAKER

Plaintiffs

AND

DOMINIC GIAMPAOLO

MARIA PEPE

Defendants

Catchwords:

Practice and procedure - Summary judgment - Whether contract for sale of land before probate enforceable - Turns on own facts

Legislation:

Administration Act 1903 (WA), s 8

Property Law Act 1969 (WA), s 33, s 34
Public Trustee Act 1941 (WA), s 9
Transfer of Land Act 1893 (WA), s 85

(Page 2)

Result:

Application for judgment dismissed

Category: B

Representation:

Counsel:

Plaintiffs : Mr B P Wheatley

Defendants : Mr M L Segler

Solicitors:

Plaintiffs : Nicholson Clement

Defendants : Shane Michael Brennan

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

Cash v Nominal Defendant (1960) 90 WN (Pt I) (NSW) 77
Duskwood Pty Ltd v Bellara Willows Pty Ltd [2002] WASCA 353
Gertsch v Roberts; Estate of Gertsch (1993) 35 NSWLR 631
Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR 57
Marist Bros Community Inc v Shire of Harvey (1995) 14 WAR 69
Mohamidu Mohideen Hadjir v Pitchey [1894] AC 437
Nagel v Hough (1927) 27 SR (NSW) 418
Sorna Pty Ltd v Flint & Anor [2000] WASCA 22
The Estate of Spencer Ex Parte Vincent (1963) 19 ABC 90

Case(s)…

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.

Continue reading Taylor v Giampaolo

Details

AGLC: Taylor v Giampaolo [2004] WASC 109
Case: [2004] WASC 109
Decision Date

CaseChat Overview and Summary

The case of Taylor and Others v Giampaolo and Another concerns a claim for specific performance of a contract for the sale of land. The plaintiffs, Howard Raymond Clifton Taylor, Colin Howard Taylor, and Jennifer Ellen Baker, allege that they entered into an agreement with the defendants, Dominic Giampaolo and Maria Pepe, to purchase a property in Pinjarra for $150,000. The defendants, who are executors of their late mother's estate, dispute the enforceability of the contract, arguing that it is not binding due to the absence of a grant of probate and the uncertainty of the agreement. The court was required to determine whether the contract was enforceable despite the defendants' lack of probate and if the agreement met the statutory requirements for a contract for the sale of land. The court considered whether an executor could enter into a binding contract before obtaining a grant of probate and whether the agreement complied with statutory provisions. The court ruled that the plaintiffs had a potentially valid claim for specific performance, as the defendants, having undertaken executorial duties before obtaining probate, could be treated as executors de son tort. The court found that the contract did not necessarily need to be in the form of a deed and that the absence of written authority for Mr Giampaolo to act on Ms Pepe's behalf was a matter to be determined at trial. The court also held that the informality of the agreement was not sufficient grounds for dismissal. The application for summary judgment was dismissed, allowing the case to proceed to trial.

Orders