Transfer of Land Act 1893 (WA)

1 The plaintiff, Giacomino (Jack) Fazio is the son of the late Vincenzo Fazio, who built up, and was a partner in, a substantial quarry business, Italia Limestone. He also had a property portfolio. Included in the portfolio was land at 14 16 South Terrace, Fremantle, which he owned with his wife Giuseppina Fazio. Vincenzo Fazio died on 5 August 2007. His will was admitted to probate on 22 May 2008, after orders by consent pronouncing for the force and validity of it.

2 The plaintiff is a beneficiary under the will for a sum of $1,000,000 with a residuary bequest at the discretion of his brother and sister, from whom he is estranged.

3 The plaintiff took action in the Supreme Court, claiming he was a partner in Italia Limestone. He lost. Moreover, the primary judge held that the plaintiff had no equitable interest in 14 16 South Terrace, Fremantle.

4 Undeterred, the plaintiff lodged a caveat over 14 16 South Terrace on 24 January 2012. He has brought these proceedings to maintain the caveat. The plaintiff has no caveatable interest in the land and the caveat must be removed.

5 On 24 January 2012, the plaintiff lodged a caveat over land known as 14 16 South Terrace, Fremantle, more particularly described as lot 123 on plan 1036, being the whole of the land in certificate of title volume 2045 folio 171. The estate or interest being claimed to support the caveat is:

An estate or interest in land pursuant to a resulting trust and promises ...

6 In my view, the statutory declaration lodged to support the claim can be taken into account in assessing whether the caveator's claim has or may have substance: Cruz v Osborne [1999] WASC 8. In Leros Pty Ltd v Terara Pty Ltd [1992] HCA 22; (1992) 174 CLR 407, the importance of the statutory declarations, at least to inform the Registrar, was recognised. Nevertheless, I acknowledge that others have a different view.

7 The matters detailed in the statutory declaration lodged in support of the caveat can be summarised:

1. The plaintiff was a member of the Italia Limestone partnership with a 2/9th interest;
2. the land was acquired using funds of the partnership;
3. promises made by his parents that the children would all share equally were denied by a fraudulent will and succession plan;
4. the plaintiff made direct and nondirect financial contributions to the acquisition, conservation and improvement of the property;
5. other parties conspired to have his parents sign a mutual will contrary to Vincenzo Fazio's instructions.

8 The application is brought under the Transfer of Land Act 1893 (WA). Section 138C(1) provides:

A caveator who is served with a notice under section 138B(1) may apply to the Supreme Court, in accordance with rules of the court, for an order extending the operation of the caveat.

9 The principles are well settled and are gathered together in Bashford v Bashford [2008] WASC 138 [52] [56]; Hong Kong International Credit Ltd v Registrar of Titles [2012] WASCA 17 [19] [24]; Custom Credit Corp Ltd v Ravi Nominees Pty Ltd (1982) 8 WAR 42. As a first step, the caveator must show there is a serious question to be tried as to whether a caveatable interest exists.

10 Following the finalisation of all matters relating to the litigation Fazio v Fazio on 28 March 2013, the Executors, together with Giuseppina Fazio, applied for the caveat to be removed.

11 The usual notice was sent by the Registrar of Titles to the plaintiff advising that the caveat would lapse at midnight on 26 April 2013. On 24 April 2013 the plaintiff commenced this action seeking that the operation of caveat L840937 be extended until further order. The caveat was extended ex parte and subsequently affidavits have been filed on both sides.

12 The plaintiff filed four affidavits sworn by him and a further affidavit of Rosario Galati Rando sworn 28 October 2013. The plaintiff did not refer to this affidavit in the course of his submissions which were discursive and raised facts well beyond the evidence in the affidavits. I have disregarded assertions of fact from the bar table not in evidence. I have read the Rando affidavit. It is irrelevant to the issues in these proceedings.

13 The defendants, who are the Executors of the will, have raised objections to the plaintiff's affidavit. Some objections to argumentative comment are upheld but make no difference.

14 The objections to irrelevance are largely upheld for reasons which follow. It is unnecessary to rule on each objection because even if the affidavits were admitted in their entirety, the result would be the same.

15 The original affidavit filed in support of the application to extend the caveat on 24 April 2013 was deficient and asserted only a belief in an interest in the land and that time was required to properly prepare an affidavit.

16 Subsequently, the plaintiff filed an affidavit dated 21 June 2013, par 2 of which reads:

1. I refer to my Statutory Declaration attached to my Affidavit sworn 24 April 2013 in this matter and say that.

2.1 I was a partner in the firm Italia Limestone Company at the time the three properties referred to in paragraph 1 of my Statutory Declaration were purchased and developed for market gardening with funds provided by the Partnership.

2.2 In the Supreme Court Action referred to, I acted on the advice of my solicitors Solomon Brothers that the Judge did not have to be told that the Will was fraudulently made, because it was blatantly obvious.

2.3 I queried this with my solicitors after Judgement was handed down and was told by my solicitors that the Court did not deal with it as it was not pleaded.

2.4 The fraud only came to my attention shortly before the trial in the Supreme Court by virtue of a document discovered shortly prior to the trial by Jackson McDonald. Attached hereto is a true copy of the notes of Jackson McDonald as to the making of the Will marked 'A' and a true copy of the Will marked 'B'.

17 The plaintiff also complains in the affidavit that, although he was bequeathed the sum of $1,000,000 in the will, it has not been paid. Events have overtaken that statement and he has now been paid.

1. [I] have an interest in Lot 123 on Plan 1036 contained in Certificate of Title Volume 2045 Folio 171 ('Lot 123') by virtue of being a beneficiary of the Estate in addition to my entitlement to a share of the land by virtue of the promises made to me, the work done by me between 1973 to 1977 on the Land for no payment, and on the promise that I would have an equal interest with my siblings of all the land referred to in my Statutory Declaration filed herein when the land was ready for development. This promise was made to me when I attempted to purchase another block of land nearby from the profits of the market garden and my father stopped me.

18 The balance of the affidavit asserts that the defendants have already transferred one of the lots to a group of investors, including one Matthew Carr. This is denied by Mr Conlan in an affidavit filed on 5 July 2013:

1. I refer to Jack Fazio's affidavit sworn 21 June 2013 in further support of the Caveat (21 June Affidavit). As an executor of the Will, I can state categorically that:

(a) there has been no transfer of any 'Estate Properties to the Catalano Family for a nominal consideration of $2.00' as stated in paragraph 6 of the 21 June Affidavit; and

(b) the South Terrace Properties have not been sold to Matthew Carr, or anyone else, as stated in paragraph 9 of the 21 June Affidavit. I do not know who Matthew Carr is and I have never spoken to anyone named Matthew Carr about the South Terrace Properties.

1. I have also spoken to the other executors of the Will, Rudy Fazio and Mrs Koleszko, who have informed me and I believe it to be true that:

(b) they have never spoken to anyone named Matthew Carr, or anyone else, about selling the Deceased's half share in the South Terrace Properties.

19 The plaintiff filed a further affidavit on 23 July 2013. This affidavit purports to have been sworn in reply to the affidavit of Mr Conlan. However, it is not in reply at all. It makes various assertions advancing the plaintiff's case of fraud in relation to the will.

20 I make no comment on the assertion of fraud other than to observe that at present it is no more than a completely untested assertion. The Executors may not be the appropriate contradictors in any event. Those accused of fraud have had no opportunity to respond.

The caveat is too vague to disclose an interest to land

21 The estate of interest claimed is pursuant to a resulting trust and the promise.

22 The purpose of requiring a caveator to specify the estate or interest claimed is to enable the registered proprietor to know or find out the claim which he or she will have to meet: Leros Pty Ltd v Terara Pty Ltd [1992] HCA 22; (1992) 174 CLR 407, 422 423. The caveat should mention the interest definitely and explicitly.

23 A caveat asserting a resulting trust, without more, does not specify the interest claimed with sufficient precision to be maintained. At the least, the facts or circumstances by which the trust is said to result should be specified.

24 A caveat which refers only to 'the promise' is so vague as to be meaningless.

25 If regard is had solely to the caveat, it fails because of imprecision and the description of the estate or interest being claimed.

26 I shall nevertheless consider the statutory declaration and other evidence in these proceedings, although this consideration leads to the same result.

27 Judicial determinations are final, binding and conclusive.

28 It is unjust for an individual to have to relitigate matters which have already been determined by a court. Decisions by a court, unless set aside or quashed, are incontrovertibly correct. This policy is carried into effect through a number of legal doctrines.

29 Res judicata, or estoppel by record, looks solely to the record of court and operates when, in subsequent proceedings, a party attempts to litigate a cause of action which is merged into judgment in a prior proceeding. Res judicata will apply if the cause of action in later proceedings is in substance the same as that litigated to judgment in the earlier proceedings. The doctrine is concerned with substance not form.

30 Issue estoppel extends not only to the point actually decided but to a matter which was necessary to decide and the decision is final.

31 The Henderson rule or Anshun estoppel will apply if and only if the matter must have been so relevant in the first proceedings that it was unreasonable not to raise it or rely on it in those proceedings. If so, a party will be prevented from relying on the matter.

32 The principles I have just expressed are collected from the decisions in Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446; Rogers v R (1994) 181 CLR 251; Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; Blair & Perpetual Trustee Co Ltd v Curran [1939] HCA 23; (1939) 62 CLR 464; Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589; Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363.

33 Against this background of principle the assertions in the statutory declaration may now be examined.

(a) I claim an estate or interest in the land pursuant to a resulting trust and promises made to me arising by reason of the matters I detail below.

(b) I am a partner in a firm named Italia Limestone company (the partnership).

(c) A firm named Italia Limestone company was first established in 1955. The partnership is a successor of the firm that was established in 1955.

(d) I use the expression 'The partnership' to refer to each successive firm that has arisen upon the admission of any new partners to the partnership or the retirement of any partners from the partnership. I also use the expression 'partner' to include a partner of any of the successive firms that have been established since 1955.

(e) I was admitted to the partnership in 1961. I have been a partner at all times since 1961. I have a twoninths interest in the partnership.

35 The plaintiff and his wife Maria Rita Fazio sued some of the defendants, other persons and a series of companies. The statement of claim alleged that in about 1956 the firm named Italia Limestone was established as a partnership, and the plaintiff was admitted to the partnership in about 1961. In about January 1976 and thereafter the plaintiff held a twoninth interest in the partnership. After a nine day trial the primary judge (Martin CJ) delivered his decision on 1 October 2010 Fazio v Fazio [2013] WASC 263. The court ordered that:

The action and the counterclaim be and is hereby dismissed.

36 The plaintiff appealed against the decision of the primary judge. After a three day hearing on 29 March 2012 the Court of Appeal delivered its decision Fazio v Fazio [2012] WASCA 72. The appeal was dismissed.

37 The plaintiff applied to the High Court for special leave to appeal.

38 On 5 December 2012 the High Court ordered that the application for special leave to appeal be dismissed with costs.

39 The judgment as reflected in the order dismissing the plaintiff's claim must now be regarded as incontrovertibly correct. The plaintiff cannot support the caveat by an assertion of partnership in the statutory declaration. To allow him to do so in these proceedings would offend the principle of res judicata.

The land was not acquired with partnership funds

Vince Fazio's and Giuseppina Fazio's (my mother's) interest in the land was acquired using the funds of the partnership.

40 The purchase of land the subject of the caveat also known as 'Casablanca' was the subject of evidence in the trial to support the plaintiff's claim. The primary judge held:

[A]lthough Jack was a member of the partnership at this time there can be no suggestion that the property was acquired on behalf of the partnership (Catalano's and Mignacca's would then have had an interest). Any role which Jack played in the procurement of the property is probably referable to his interest, as a son, in acquisitions made by his parents [82].

41 On the principle of issue estoppel the plaintiff cannot now assert that the interest in the land was acquired using funds of the partnership.

Direct and indirect nonfinancial contributions to the acquisition, conservation and improvement of the property

I am therefore prepared to accept that he (the plaintiff) played some role in the procurement of the Casablanca property. I do not consider it is necessary to determine the precise extent of that role, as whatever its extent, it did not involve any forgone opportunity and is incapable of creating any equitable interest in the property (ts 82) (my emphasis).

43 Issue having been joined in Fazio v Fazio the plaintiff cannot now assert that any contributions he has made amount to an equitable interest to support the caveat.

(j) My partnership interest's, promises made to me by my parents throughout my life, are denied by a fraudulent will and succession plan.

...

(m) My parents always promised me, that each child would share equally in all the assets (The promise).

(n) My parents signed a will and succession plan believing that their promise would be carried out.

...

(r) The mutual will and succession plan signed by my parents (Vince and Giuseppina Fazio) on the 18th of September 2006 is a fraud.

44 There are other assertions in the statutory declaration which are not necessary to set out because they do not advance the essence of the claim that the will is a fraud.

45 The passage from the plaintiff's affidavit of 23 July 2013 set out earlier demonstrates the plaintiff knew about the notes prior to the trial of Fazio v Fazio but chose not to do anything with them.

46 In CIV 2354 of 2007 Ridolfo Rosario Fazio, Sarina Kolesco and Mark Anthony Conlan the Executors v Giacomino Fazio, the primary judge (Martin CJ) made orders by consent on 8 May 2008 pronouncing for the force and validity of the will of Vincenzo Fazio in solemn form of law and directed the Probate Registry to issue a grant of probate to the named executors.

47 Probate was issued on 22 May 2008. That order precludes the plaintiff from relying on the assertions in these proceedings that the will was brought about by fraud.

48 The grant of probate of the will in solemn form has never been challenged, a matter of significance.

49 Prior to his death, Vincenzo was the registered proprietor of 14 16 South Terrace as tenant in common in equal shares with his wife Giuseppina.

50 Following the grant of probate, the executors became registered as tenants in common with Giuseppina Fazio in equal shares.

51 In these proceedings the plaintiff repeated and amplified the assertions made in the statutory declaration, and calling into aid evidence from Ms Rando who is the plaintiff's mother's second cousin. To further these assertions, by chamber summons, the plaintiff sought discovery of the instructions on the will given to Jackson McDonald. I dismissed that application, principally on the grounds of relevance.

52 The instructions are not relevant to the issues raised in these proceedings to extend the caveat now that probate has been granted.

53 The order pronouncing for the validity of the will is a complete answer to those assertions and there is a further answer as well. The plaintiff is now estopped from asserting that the mutual wills executed by Vincenzo and Giuseppina Fazio were not what they wished in relation to the South Terrace property (by application of the Henderson rule: Henderson v Henderson [1843] EngR 917; (1843) 3 Hare 100, 319 (Wigram VC)).

54 In the trial, Giuseppina Fazio gave evidence by way of written witness statement and on oath through an interpreter. In her witness statement she said:

1. The lawyers of Jackson McDonald tell me that Giacomino has stated that my husband did not know or understand what was in his last will or what he was doing when he prepared it.

1. We gave Giacomino 1,000,000 dollars to avoid other arguments.
2. I remember having said to Vincenzo words to the effect, 'I don't want Giacomino to have interests in the South Terrace properties. A gift of 1 million dollars in cash to Giacomino should be enough for his needs. The South Terrace properties are also mine and I want to leave them to Ridolfo and Sarina so that Ridolfo can manage his nightclub.'
3. After the donations, Vincenzo left a third of his assets to Giacomino's family. He did not give control to Giacomino. My husband left a share of Italia Limestone to Giacomino's children, but not to Giacomino. We didn't trust him.

55 Giuseppina Fazio was not crossexamined about the South Terrace properties.

Didn't your husband on many occasions say that when he died that he wanted all the wealth that he had created to go to his three children equally?Well, my husband never talked about dying and he never said that, 'I will do this for the children' or 'let's make this paper for them,' but of course many times he asked me to sign a document and I would sign it.

Isn't this the position: you think that the way your late husband's affairs are arranged and the way that his will and the will that you have currently in place work, is that ultimately the wealth that your husband generated during his lifetime will go to the three children and their families equally, that's what you think isn't it?Well, my husband gave to Ridolfo and Sarina what he wanted to give, and to him whatever he has been given is written in the deed - I suppose is the will - and whatever is written he will have to take. They will get whatever is written in the deed.

You told me a few minutes ago that you thought Ridolfo and Sarina were going to get a bit more than Jack?Okay, well, if my husband told me that, maybe they will get a little bit more but the business will be of Ridolfo, Sarina. The Italia Limestone business will be of Ridolfo and Sarina and the three children of Jack. They will be the heirs because their portion of the share, instead of going to Jack will go to his children (ts 10/2/10, pages 792 794).

57 In the trial of Fazio v Fazio a necessary matter to be decided on the issues joined in Fazio v Fazio was whether Vincenzo and Giuseppina, who executed mutual wills, intended the plaintiff to share in the estate with a one third entitlement. The primary judge found:

For these reasons, I reject the evidence of Jack and Maria to the effect that representations were made by Vince, with the concurrence of Guiseppina, that Jack would be entitled to onethird of everything. Nor do I accept that Jack believed that he would be entitled to one-third of everything, as that belief would be inconsistent with the acrimonious events described in his evidence, and the way in which he structured the various transactions in which he was involved so as to take a personal interest quite separate and distinct from the interest taken by his parents. Nor is there any evidence that Jack acted in reliance upon any such belief. Rather, the evidence establishes that Jack was at all times after 1984 motivated by his own interests in each and every one of the transactions placed before the court [459].

For these various reasons, I reject the plaintiffs' claim that the doctrine of estoppel provides Jack with an entitlement to a one-third interest in the various assets identified in the course of the proceedings [460].

58 The plaintiff is a beneficiary under the estate. The estate is still being administered. The plaintiff cannot acquire a beneficial (and therefore caveatable) interest in property at this stage: Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12; Meynert (as Executrix of the Estate of Pittorino) v Leafdale Pty Ltd (as Trustee for Pittorino Family Arrangement Trust [2005] WASC 102.

59 The plaintiff is not a beneficiary in respect of the land at 14 16 South Terrace. The property was given to the R Fazio Testamentary Trust and the S Fazio Testamentary Trust by cl 26 of the will.

60 The administration of the estate is ongoing. However, on 14 November 2013 the executors paid the plaintiff his bequest under the will whereby he was beneficiary in the sum of $1,000,000.00. After deducting amounts due under debt appropriation and other court orders the plaintiff received a cheque for $85,797.31. The plaintiff's sole remaining interest in the estate is as a discretionary beneficiary. This interest is insufficient to support a caveat.

Consolaro v Consolaro [2009] WASC 240

61 The plaintiff asserts that the facts in his application are almost identical to the facts in Consolaro v Consolaro [2009] WASC 240 and lists the similarities:

4.1 My late father Vincenzo Fazio 'regarded himself with my mother's approval as being entitled to make any decision whatever about the family properties and treated his children as being obliged by honour, to accept whatever he did and to trust in his wisdom and justice for the depositions which he would make'.

4.2 The plaintiff suffered a loss of remuneration or adequate remuneration for all the work from 1973 to 1977 and from 1978 to 1984 thereafter in assisting to put property deals together for the family.

4.3 The plaintiff incurred a loss of opportunity to pursue his university studies as the demands of work increased.

62 Consolaro was a case where, after trial, a judge held on the facts of the particular case that the plaintiff had a one undivided equal share as third share in tenant in common with the defendant in the subject land. The material findings in Consolaro are quite different form the present case where the primary judge found the contrary to the plaintiff's assertions.

63 The plaintiff asserted in the statutory declaration at 2:

(k) I am currently waiting a supreme court appeal decision in the first half of 2012.

64 That decision dismissed his appeal. Any possibility of a caveatable interest disappeared on that day. There was an air of unreality about some of the plaintiff's submissions. It was as if Fazio v Fazio had never been decided even though in the course of submissions on the chamber summons for discovery the plaintiff did concede that the decision stood.

65 Perhaps it is this recognition of reality that has caused the plaintiff to recast his attack somewhat by challenging the will as a fraud. But, the same difficulty arises. There is a court order to the contrary, that which granted probate.

66 The primary judge's orders and the essential reasoning that lead to his judgment are now incontrovertibly correct.

67 The claimed interest in land is imprecise and vague but more importantly has no substance or support in fact.

68 I order that the caveat be removed and the plaintiff's originating summons be dismissed.