COLOGNA INVESTMENTS PTY LTD as trustee for THE P. AND D. PANIZZA FAMILY TRUST -v- CARANNA [2023] WASC 368 (21 September 2023)

admit that correspondence was exchanged between them and the Plaintiff's solicitor, as alleged in paragraphs 9 to 13 (inclusive) of the SoC, [but] do not admit paragraphs 9 to 13 (inclusive) of the SoC.

1. It is not entirely clear what this plea means. The phrase within the commas appears to admit the contents of the correspondence as pleaded. However, this would leave nothing to 'not admit'. I will assume, favourably to the defendants, that this plea only admits that correspondence was exchanged on those dates and was not an admission of its contents.
2. Cologna pleads that Ms and Mr Caranna had no right to be in possession of the property. The defendants deny this.[4] Cologna pleads that Ms Caranna's conduct in remaining in and refusing to give up possession or vacate the property amounts to a trespass. She denies this.[5]
3. Cologna pleads in the alternative that the defendants have abandoned the property but have failed or refused to return the keys. The defendants deny this.[6]
4. Cologna pleads that it has been deprived of the use and enjoyment of the property and has thereby suffered loss and damage. The defendants deny this.[7]
5. The defendants plead an estoppel based on what they allege they were told by a Domenica Panizza in around 2009. At that time, Ms Panizza was the appointer of the Trust and the sole director of Clathington (the company that was then the trustee of the Trust).
6. The defendants plead, in effect, that, in around 2009, Ms Panizza told Ms Caranna that, if she and her husband agreed to move into the property and look after Ms Panizza during her lifetime, then they could remain in the property free of charge for as long as they wanted to (Representation). The defendants further plead that the alleged Representation was made by Ms Panizza for and on behalf of the trustee of the Trust and bound the Trust and its trustee, including Cologna.[8]
7. The defendants plead that they acted on that alleged Representation to their detriment, and that they will suffer a detriment if they are not able to continue to live in the property free of charge.[9] They plead that, by reason of these matters:[10]
   1. the departure from the Representation by the Plaintiff and/or the Plaintiff's refusal to recognise the rights granted by it to the Defendants, is and will be unconscionable;
   2. the Plaintiff is and should be estopped from denying the Representation and acting contrary to it; and
   3. the Plaintiff is obliged to allow the Defendants to remain in and live at the Property for the rest of their lives free of charge.

1. On 12 May 2023, Cologna made the application for summary judgment under O 14 of the Rules of the Supreme Court 1971 (WA). Cologna filed submissions and affidavits in support of the application.
2. It appears that the defendants do not intend to participate in these proceedings. Initially, the defendants were represented. Their solicitors filed an appearance, a defence and an amended defence.
3. On 15 May 2023, consent orders were made requiring, among other things, the defendants to file any affidavits in opposition to the application by 30 May 2023. The defendants did not file any affidavits.
4. On 27 June 2023, the defendants filed notices that each of them intended to act in person.
5. The defendants did not appear at the hearing of the application.

1. The defendants filed appearances on 11 April 2023. Where an appearance has been filed, an application for summary judgment must be filed within 21 days after the appearance unless leave is obtained to apply out of time.[11]
2. Cologna's application for summary judgment, filed on 12 May 2023, was filed more than 21 days after 11 April. Therefore, Cologna requires leave to apply out of time.
3. In its written materials and oral submissions, Cologna did not seek leave to apply out of time or seek to explain the delay. Indeed, Cologna did not refer to its failure to meet the time requirement at all. This is regrettable. The matter was originally listed in the Master's List. Given the very high volume of matters that the Master is required to deal with, the Master ought to be able to rely on counsel to ensure that any defects are drawn to the court's attention. This is particularly so where summary judgment is sought against unrepresented litigants.
4. That said, having raised it with counsel during the hearing, I am satisfied that the failure to draw it to the court's attention was entirely inadvertent. Counsel had not realised the application had been filed out of time.

1. The general principles in relation to the grant of summary judgment were helpfully summarised by Pritchard J[12] in Westpac Banking Corporation v Anderson [13] (citations omitted):

O 14 r 1 RSC ... permits a plaintiff, following service of its statement of claim, and following an appearance by the defendant, to apply to the Court for judgment against the defendant, on the ground that the defendant has no defence to the claim, or to a particular part of the claim.

On the hearing of the application, unless the defendant satisfies the Court that there is an issue or question in dispute which ought to be tried, or that for some other reason there should be a trial, the Court may give judgment for the plaintiff on the claim.

The plaintiff's affidavit in support of the application for summary judgment must verify the essential elements of the cause of action upon which the application is based and must state that the deponent verily believes that there is no defence to the claim. Notice of a proposed defence (or ... notice of the actual defence) does not disqualify a plaintiff from asserting the belief that there is no defence to the claim.

... [A] plaintiff who applies for summary judgment bears the burden of persuading the Court that the claim is a good one and that there is no defence. If the plaintiff's affidavit in support of the application makes out a prima facie case on those two matters, an evidentiary burden will pass to the defendant to show that there is a defence to the action. However, the overall legal burden remains with the plaintiff to persuade the Court that the relief sought should be granted.

There is no doubt that the power to grant summary judgment to a plaintiff will be exercised with great care and will not be exercised unless it is clear that there is no real defence to be tried. If it is not possible to say, without doubt, on the whole of the material, that there is no question to be tried, the defendant should have the opportunity to defend the action. Having said that, if the facts are undisputed and the case is clear, summary judgment should be given.

Where a defendant files an affidavit to resist an application for summary judgment, the affidavit should deal specifically with the plaintiff's claim and their affidavit, should set out the particulars of the defence and should state the facts which show that the defence is arguable (although it is not necessary to set out all of the facts which would be necessary to establish the defence at trial).

1. By O 14 r 1, where an appearance has been filed, an application for summary judgment must be filed within 21 days after the appearance or at any later time by leave of the court.
2. The policy behind the time requirement, and the proper approach to an application for an extension of time, was succinctly set out by Chaney J in Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 11)[14] (citations omitted):

The policy of the rule that summary judgment applications be brought within a relatively short time frame is that such applications should be brought at an early stage of the proceeding and before unnecessary expense has been incurred. The discretion to extend the time is given for the sole purpose of enabling the court to do justice between the parties. The discretion should be exercised in favour of an applicant where strict compliance with the rules will work an injustice upon the applicant. In order to determine that question, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application for an extension of time. There should be material before the court upon which it can exercise its discretion. Usually it will be incumbent on an applicant for an extension of time to provide an adequate explanation for the delay.

1. The application must be filed within 21 days after an appearance, or leave to apply out of time must be obtained. 2. If the application is not filed within that time period,

(a) an extension of time should be granted where strict compliance with the rules would cause injustice to the plaintiff, having regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application for an extension of time;
>
> (b) there should be material before the court upon which it can exercise its discretion; and
>
> (c) ordinarily, the plaintiff should explain the delay and show that it was justifiable in the circumstances.

1. The plaintiff must file an affidavit in support of the application for summary judgment. 2. The affidavit must verify the essential elements of the cause of action upon which the application is based. 3. The affidavit must state that the deponent verily believes that there is no defence to the claim. 4. The plaintiff must demonstrate that the claim is a good one (which will overlap with the fourth requirement) and that there is no defence.

1. Cologna filed the application after the 21‑day period had elapsed. It therefore needs an extension of time, as reflected in the first requirement listed above.
2. Cologna has filed affidavits in support of the application, meeting the third requirement.
3. Accordingly, the following issues require determination:

1. Are the first and second requirements met? That is, should an extension of time be granted? In particular, would strict compliance with the rules cause injustice to the plaintiff, having regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application for an extension of time? 2. Does an affidavit(s) filed by Cologna meet the fourth and fifth requirements? That is, does it:

(a) verify the essential elements of the cause of action upon which the application is based; and
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> (b) state that the deponent verily believes that there is no defence to the claim?

1. Is the sixth requirement met? That is, has Cologna established that its claim is a good one and that there is no defence? In other words, is it clear that there is no real defence to be tried?

1. Cologna filed two affidavits in support of the application. Both were sworn by Giovanni Panizza. Mr Panizza is a director of Cologna.
2. In the first affidavit,[15] Mr Panizza set out the history of this matter and attached various documents, supporting the plaintiff's pleaded case.
3. The first affidavit attaches a copy of the certificate of title for the property and copies of the correspondence that had been exchanged between the parties.
4. The certificate of title confirms that Cologna has been the registered proprietor of the property since 12 February 2020.[16]
5. Earlier, I set out paragraphs 9 to 13 of the Statement of Claim, in which Cologna refers to particular correspondence. The first affidavit attaches copies of the correspondence pleaded in those paragraphs, as Attachments GP2 to GP6. The attachments bear out the allegations made in those paragraphs of the Statement of Claim.
6. Among the correspondence referred to in those paragraphs of the Statement of Claim is an email said to have been sent from Ms Caranna to Cologna's solicitor, in response to the first pleaded request to vacate the property (Ms Caranna's Email). Paragraph 10 of the Statement of Claim pleads that Ms Caranna 'stated that she would not be vacating the Property and stated that under the Trust beneficiaries were able to use property of the Trust'. This accurately reflects the substance of Ms Caranna's Email. However, as it is relevant to the defendants' pleaded defence, I note its actual content. It reads, in its entirety:

Can you inform all that I will not be vacating the property until all matters have been resolved. Under the trust deed beneficiaries are able to use property of the family trust[.] I have been for over 13 years.

1. In the first affidavit, Mr Panizza further deposes that the defendants have failed or refused to give possession of the property to Cologna. He deposes, however, that it appears that the property was vacated by the defendants in December 2022. He said that, 'during that period', he noticed that the lawns were not mown, the bins were not emptied and the amount of the water consumption charges in the invoices for 'that period' was negligible. He said that he therefore believed that the defendants were not living at the property 'during that time'.[17]
2. Finally, Mr Panizza deposes, meeting the fifth requirement:[18]

I verily believe that the Defendants have no defence to this claim and that the Plaintiff is entitled to judgment and possession of the Property.

1. The second affidavit[19] attaches an earlier copy of the certificate of title for the property confirming that Clathington was the registered proprietor of the property in 2004.[20] The second affidavit also confirms the other matters admitted on the pleadings.
2. In addition, Mr Panizza sets out in the second affidavit more of the history between the parties. In particular, he deposes as to changes to the appointor of the Trust and the trustee of the Trust at various times.
3. Mr Panizza also discusses the related proceedings, CIV 2575 of 2015, which are still ongoing.

Consideration Requirements 1 and 2 - Should an extension of time be granted?

1. As Cologna filed the application after the 21‑day period had elapsed, it needs an extension of time.
2. Cologna did not adduce evidence to explain the delay. In some cases, this would be sufficient reason to refuse to grant an extension of time. However, the delay here was relatively short. Cologna made the application 10 days late.
3. Having regard to the relevant factors, I consider that refusing an extension of time would be unjust. There is nothing to suggest that the defendants will suffer any prejudice due to the delay. The defendants appear to have elected to cease taking part in the proceedings. As I will explain, Cologna has established a good case of possession, and there is no evidence to support any defence to that claim.

Requirements 4 and 5 - Do the affidavits meet those requirements?

1. The affidavits of Mr Panizza verify the essential elements of the cause of action in relation to possession of the property. However, as I will explain, I am not persuaded that they verify the essential elements of trespass.
2. First, the Statement of Claim alleges that Ms Caranna has been trespassing since 1 November 2019.[21] Cologna does not assert that she was on the property prior to that time without permission or licence. If she was on the property prior to that time with permission or licence, she could not be a trespasser until (at least) she remained on the property for an unreasonable time after the termination of the permission or withdrawal of the licence. There is no allegation of a request to vacate the property before 6 March 2020.
3. Second, I am not satisfied that the evidence excludes the possibility that, after that time, Cologna consented to Ms Caranna remaining there for particular periods of time.
4. Accordingly, I would not grant summary judgment in relation to the trespass claim.

1. I am satisfied that Cologna established that its claim for possession is a good one.
2. The defendants have pleaded a defence which would, if established, be a defence to the claim of possession. However, they have filed nothing to support the pleaded allegations. There is not even any evidence that Ms Panizza made the alleged Representation. There is nothing in the evidence filed by the plaintiff to support that allegation. Nor is the alleged Representation something that would be solely (if at all) within the knowledge of the plaintiff. I further note that Ms Caranna's Email, sent in 2020, relied upon the trust deed for her possession not upon the alleged Representation.
3. For these reasons, I would grant leave to apply out of time, would grant summary judgment in relation to the claim for possession, and would make orders in terms of proposed order 2. I would dismiss the application for summary judgment in relation to the trespass.
4. Finally, I would order that the defendants pay Cologna's costs of the application.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Statement of Claim attached to Writ of Summons filed 7 February 2023 (Statement of Claim) [2], [3], [5] and [6] and Amended Defence of the First and Second Defendants filed 11 May 2023 (Defence) [1] ‑ [4].

[2] Statement of Claim [7], [14] and [16] and Defence [5], [11] and [13].

[4] Statement of Claim [8] and [17], Defence [6] and [14].

[5] Statement of Claim [15], Defence [12].

[6] Statement of Claim [18], Defence [15].

[7] Statement of Claim [19], Defence [15].

[13] Westpac Banking Corporation v Anderson [2017] WASC 106 [100] ‑ [105]. And see Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 [24].

[14] Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 11) [2016] WASC 235 [4]. See also Deputy Commissioner of Taxation v Lafferty [2017] WASC 257 [40] ‑ [41].

[15] Affidavit of Giovanni Panizza filed 12 May 2023 (First Affidavit).

[19] Supplementary Affidavit of Giovanni Panizza filed 12 May 2023 (Second Affidavit).

[21] See Statement of Claim [8] and [20] and the fourth prayer for relief.