Supreme Court of WA|2009-07-22|Before: Murphy J

GANGEMI -v- GANGEMI [2009] WASC 195 (22 July 2009)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : GANGEMI -v- GANGEMI [2009] WASC 195

Caveat - Whether caveatable interest existed by reason of a will - Effect of an alleged codicil not the subject of probate or letters of administration - Whether claim under Inheritance (Family and Dependants Provision) Act 1972 (WA) constituted a caveatable interest - Whether total failure of consideration for transfer of land

Plaintiff succeeds in applications to remove caveats under s 138 of the Transfer of Land Act

Baltic Shipping Company v Dillon [1993] HCA 4; (1993) 176 CLR 344

Bashford v Bashford [2008] WASC 138

Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42

David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; (1992) 175 CLR 353

Dean & Westham Holdings Pty Ltd v Lloyd (1991) 3 WAR 235

In the Estate of Langton [1964] P 163

Jandric v Jandric [1999] WASC 22

Kerabee Park Pty Ltd v Daley [1978] 2 NSWLR 222

Leros Pty Ltd v Terara Pty Ltd [1992] HCA 22; (1992) 174 CLR 407

Martin v Official Trustee in Bankruptcy [1990] TASSC 20; [1990] Tas R 65

Midland Brick Company Pty Ltd v Welsh [2006] WASC 122; (2006) 32 WAR 287

Navarac Pty Ltd v Moondancer Holdings Pty Ltd [2009] WASCA 95

Re Hayes' Will Trusts [1971] 1 WLR 758

1 MURPHY J: I have before me two related applications, pursuant to s 138 of the Transfer of Land Act 1893 (WA), by the same plaintiff to show cause why certain caveats registered against the same parcel of land ought not be removed. The plaintiff and the second defendants are the same in both matters and are the registered proprietors of the land over which the two caveats have been registered. The third defendant, the Registrar of Titles, has taken no part in these proceedings, other than to foreshadow that it wishes to be heard on any proposed orders.

2 The facts pertaining to each application are essentially the same and, pursuant to orders made by Kenneth Martin J on 14 May 2009, the applications are to be heard together and the evidence in one be the evidence in the other. Accordingly, I will set out the details as if the two applications are one application, and note only relevant differences between the applications.

3 Matter CIV 1557 of 2009 concerns caveat K846208, which is an absolute caveat lodged on 6 February 2009 by the first defendant, Anthony Gangemi, in relation to the whole of the land in Certificate of Title Volume 1945 Folio 99, described as Lot 15 on Diagram 9644 (the land). On the face of the caveat, the interest claimed is a 'beneficial interest' and is said to be claimed by virtue of 'terms of the will of Domenica Gangemi'. Anthony Gangemi's statutory declaration dated 28 February 2008 in support of the caveat stated:

I am the Caveator named in caveat K846208C ('the Caveat').
I make this declaration in support of the Caveat which claims an interest in the land known as 15 Abernethy Road Byford in the State of Western Australia being Lot 15 on Diagram 9644 being the whole of the land comprised in the Certificate of Title Volume 1945 Folio 99 (the 'Property').
The interest I claim in the Property is as beneficiary of the estate of Domenica Gangemi ('my mother') who died on the 6th February 1996.
My interest arose pursuant to the facts set out in paragraphs 5 to 8 of this statutory declaration.
The Property was until 11 October 1982 registered in the name of my mother. It was transferred to the current registered proprietors pursuant to a indenture executed on or about the 28th day of June 1978 ('the Indenture') pursuant to which, my mother was to receive a range of consideration for the transfer of the Property.
My mother did not receive any consideration for the transfer of the Property during her life, nor was her estate paid any consideration after her death. Consequently, there has been a total failure of consideration for the transfer of the property.
As a consequence of the facts set out in paragraph 6 above, the registered proprietors held the Property on constructive trust for my mother as at the date of her death and on constructive trust for her estate thereafter.
I claim a 1/6th interest in the Property by virtue of my interest in my mother's estate pursuant to the express terms of her will.

4 Matter CIV 1858 of 2009 concerns caveat K905114, which is an absolute caveat lodged on 8 April 2009 by the first defendant, Caterina Ierace, in relation to the land. On the face of the caveat, the interest claimed is 'upon the doctrine in resulting trusts as a beneficiary' and is said to be claimed by virtue of the 'statutory declaration of Caterina Ierace dated 4 May 2009'. Caterina Ierace's statutory declaration dated 4 May 2009 in support of the caveat stated:

I am the caveator named in caveat K905114 (the caveat).
I make this declaration in support of the caveat which claims an interest in the land known as 15 Abernethy Rd Byford in the State of West Australia being Lot 15 on Diagram 9644 being the whole of the land comprised in the certificate of title Vol. 1945 Folio 99 (the property).
The Interest I claim in the property is as beneficiary of the estate of Domenica Gangemi (my mother) who died on 6th February, 1996.
My interest arose pursuant to the facts set out in paragraphs 5 to 8 of this statutory declaration.
The property was until 11th October 1982 registered in the name of my mother. It was transferred to the current registered proprietors pursuant to a indenture executed on or about 28th day June 1978 (the indenture) pursuant to which, my mother was to receive a range of consideration for the transfer of the property.
My mother did not receive any consideration for the transfer of the property during her life, nor was her estate paid any consideration after her death. Consequently there has been a total failure of consideration for the transfer of the property.
As a consequence of the facts set out in paragraph 6 above the registered proprietors held the property on constructive trust for my mother as at the date of her death and on constructive trust for her estate thereafter.
I claim 1/6th interest in the property by virtue of my interest in my mother's estate pursuant to the expressed [sic] terms of her will.
At the time of my mother's death I got verbal confirmation from the registered proprietors that they are holding a share of this property for me in trust.
I hereby lodge this on the 4th day May 2009 upon the doctrine of resulting trusts as a beneficiary.

5 It is clear from the copy of the duplicate Certificate of Title Volume 1945 Folio 99, issued 4 September 2008 and attached to the affidavit of Pino Gangemi sworn 20 March 2009, that the land caveated is the same parcel of land as was previously described in cancelled Certificate of Title Volume 1038 Folio 843. In much of the evidence the land is referred to by its former Certificate of Title volume and folio numbers, or by its description as 'the Abernethy Road property'.

6 To understand the applications, it is necessary to outline the details of the familial relationship between the plaintiff and the first and second defendants in each matter. The claims and the evidence refer to various transactions between the family members who are parties to these proceedings, and other family members who are not parties, but who have been involved in the historical background to these proceedings.

7 Giuseppe Gangemi (deceased) and Domenica Gangemi (deceased) were the parents of the plaintiff and the first and second defendants in these matters. For the sake of clarity, I will refer to the family members by their first names. I do not intend any disrespect or discourtesy in so doing.

Pino Gangemi - the plaintiff in both matters;
Antonino Gangemi (known as Nino) - the first-named second defendant in both matters;
Paolino Gangemi (known as Paul) - the second-named second defendant in both matters (I should note here that Paul has been referred to as Robert in relevant documents, however, I will refer to him consistently as Paul);
Antonio Gangemi (known as Anthony) - the first defendant in matter CIV 1557 of 2009;
Caterina Ierace - the first defendant in matter CIV 1858 of 2009;
Giovanni Gangemi (known as John) (now deceased); and
Maria Audino (now deceased).

9 The family, or various members of it, carried on business in partnership over a number of years prior to 31 December 1974. Partnership business involved dairy farming and the acquisition of properties. It is not entirely clear whether there were two partnerships, one carrying on the business of dairy farming and one carrying on the business of property acquisition, or whether there was one partnership carrying on the two businesses. I will assume the latter is the case rather than the former, although the distinction is immaterial for present purposes. The partnership and its dissolution are outlined further below.

History of the transfer of the land to the current registered proprietors

10 On 11 October 1982 a transfer of the land was registered. A copy of the transfer document is attached to the affidavit of Pino sworn 20 March 2009. The transferors were Giuseppe and Domenica and the transferees were Pino, Nino and Paul, as tenants in common in equal shares.

11 The transfer of land document also records that the consideration for the transfer to Pino, Nino and Paul was 'the terms of a Deed of Dissolution of Partnership dated 28 June 1978'.

12 A copy of the cancelled Certificate of Title attached to the affidavit of Pino records the registration of the transfer of the land to Giuseppe and Domenica on 13 January 1978.

13 The contract for sale between the previous registered proprietors as vendors, and Giuseppe and Domenica as purchasers, is dated 30 November 1971. Under the contract for sale, Giuseppe and Domenica as purchasers were entitled to vacant possession of the land from 31 October 1971, and were to pay the vendors annual instalments of the purchase price plus accrued interest for a period of six years. The purchasers' interest in the property was protected by two absolute caveats during that time.

14 Anthony, in his affidavit sworn 21 May 2009 attached to the affidavit of Caterina sworn 21 May 2009, contends that the land was never part of the partnership properties as Giuseppe and Domenica were not the registered proprietors at the date of dissolution of the partnership. However, whilst Giuseppe and Domenica obtained legal title upon registration, they clearly had, in my view, an equitable interest prior to then, under the contract for sale dated 30 November 1971. Accordingly, if that interest was held on behalf of a partnership, the fact that registration did not occur until 1978 did not preclude the partnership from having an interest in the land prior to then.

15 The parties to the Deed of Dissolution of Partnership dated 28 June 1978 (the deed), by the names they are known as now, were Giuseppe and Domenica (the parents), and Pino, Nino, John, Paul and Anthony (the sons). Each party to the deed signed the deed and it was stamped.

16 The deed recites, relevantly, as follows. The operation of a partnership was recorded in a deed in January 1960 between Giuseppe, Domenica, Pino and Nino in relation to the farming business 'Gangemi & Sons' which they had been operating as a partnership since 1 June 1959. The partners had agreed that, in addition to carrying on the farming business, the partnership would acquire property or properties for the carrying on of that business. John, Paul and Anthony became partners in 'the partnership business of the acquisition property' on 30 October 1964. The partnership had operated from property situate at Briggs Road, Byford (the Briggs Road property). John and Paul became partners in 'the partnership business of dairy farmers' on 1 July 1967. The partnership deed was not varied to reflect the admission of John, Paul and Anthony to the partnership, but their admission was, however, reflected in the partnership books. Dissolution of the partnership occurred on 31 December 1974 by mutual consent. From 1959 to dissolution in 1974, various partnership properties were purchased in 'various combinations of the names of some 2 or more of [Giuseppe], [Domenica] and the sons', for reasons associated with financing or problems concerning milk quotas and the requirements of the Milk Board regarding the holding of licences.

17 The properties so acquired were those described in the first to fifth schedules to the deed. They comprised various properties, including the land.

18 The deed further recites ((c) at page 4 - 5) that Giuseppe and Domenica did not wish to retain 'any interest in any of the properties licences and cattle' and that

the same would be distributed by way of partition among the sons and for that purpose [Giuseppe and Domenica] would sell or otherwise dispose of their respective shares and interests in the properties ... to the sons in such proportions and for such considerations as should after proper consideration and advice be mutually agreed upon and determined INCLUDING as part consideration the right to the use and occupation of the house on the Briggs Road property and the payment of the periodical amounts hereinafter referred to.

19 The following recital, (d), records that the parties agreed that Pino would acquire the properties in the first schedule, Nino would acquire the properties in the second schedule, John would acquire the properties in the third schedule, Paul would acquire the properties in the fourth schedule and Anthony would acquire the properties in the fifth schedule.

20 By cl 2(c) of the deed, the parties agreed that all such properties were held on behalf of the partners in the 'property partnership' as existing from time to time and as set out in the sixth schedule. By cl 2(g), the parties agreed that Anthony was a member of the 'property partnership' and acquired an interest in the properties as set out in the sixth schedule, although not having contributed cash therefor.

21 Clause 3 of the deed provided that at the date of dissolution, the total value of the properties held by the 'properties partnership' was $996,325 and the value of Anthony's interest in the 'properties partnership' was recorded in cl 3(g) as 1/17th, namely $58,607.

Each of [Giuseppe] and [Domenica] HEREBY SEVERALLY SELLS TRANSFERS CONVEYS AND ASSIGNS as at the date of dissolution ALL THAT the three-seventeenths (3/17ths) share and interest of each of them in the properties subject to all and any liabilities attached thereto and 1/6th share in the licences cattle and chattels to the sons in the proportions and numbers and for the respective purchase prices and otherwise as set out in the said Seventh Schedule. And the amounts owing by each of the sons to [Giuseppe] and [Domenica] as therein set out shall be debts due and owing by each of the sons to [Giuseppe] and to [Domenica] payable as and when demanded by [Giuseppe] and/or [Domenica].

23 By cl 6(a), the deed provided that Pino, Nino and Paul, as part consideration for transfer of the various properties, licenses, cattle and chattels agreed to permit Giuseppe and Domenica to occupy rent-free for the rest of their lives the house on the Briggs Road property, and to pay its rates and taxes, and to meet the costs of maintaining that property in good repair and of insuring it. They also agreed that if the parents decided not to remain at the Briggs Road property, they would buy in their parents' names, and for their parents use and occupation in their lifetime, an alternative residence of similar standard, including furniture and household contents.

24 By cl 6(b), the consideration also required the payment of periodical amounts by Pino, Nino and Paul to Giuseppe and Domenica. They were required to pay

to [Giuseppe] and to [Domenica] jointly during their joint lives and to the survivor of them during his or her lifetime such monthly sum being not less than $160 each as shall be necessary to maintain them and each of them in a fit and proper standard of living to be increased every three months by such amount as is equal to the increase in each period of the cost of living as determined by the Arbitration Commission of the State of Western Australia or the percentage rate of taxation indexation as fixed by the Parliament of Australia whichever is the higher.

25 Clause 6(c) provided that the remainder of the consideration for the transfers was the payment of the sums set out in the deed inclusive of the assumption of stipulated liabilities in respect of various amounts then owing on the properties.

26 By cl 7, read in conjunction with the first, second and fourth schedules, Pino, Nino and Paul were to take one undivided third share each in the land.

27 Clause 8 set out the sums which each son was to pay to, and receive from, each of the other four sons, 'by way of equality on partition'.

28 Clause 11 provided, in effect, for a right of first refusal in favour of the other parties, if a party ultimately wished to sell his interest in any of the properties.

29 Domenica survived Giuseppe and she died on 6 February 1996. Her will was dated 5 November 1985 (the 1985 will).

30 Under the 1985 will, Domenica named her son John and her daughter Maria as executors and trustees and gave to them her entire estate to hold on trust for 'my children as tenants in common in equal shares'. It also provided that if any child predeceased Domenica, that child's share was to be given to its own children in equal shares.

31 By 1996, John had died and Maria was too unwell to accept the office of executor. Accordingly, on 19 November 1997, the Public Trustee obtained letters of administration, limited to the 1985 will.

32 Anthony deposes at par 13 of his affidavit sworn 31 March 2009 that Domenica made a 'variation' to the 1985 will on 26 March 1987 (the 1987 document). A copy of the document purporting to be the variation is attached to his affidavit and to Caterina's affidavit dated 21 May 2009. It is handwritten in Italian and, although Anthony states that it was made 'before two witnesses', it does not bear a signature at the end of the document, and is unattested. Also attached to Anthony's affidavit is a document which he states is the translation of the handwritten document into English. The translation reads:

Armadale 26/3/1987, 39 William St. Armadale.

This document, handwritten by me, must be the contract and document of my death and considered the same. I wrote it in Italian as I can not write in English but under the law, you will translate it into English. I will take this document to the Rural Bank in Armadale. You will go and get it two weeks after my death and you will do everything I wrote here. Have you understood? I will make two copies. I will take one to the priest in Armadale and the other one to the Rural Bank in Armadale R/S.

I sign, Domenica Gangemi, 39 William St. Armadale, with two witnesses.

Dear Children,

I again tell you that we have 10 acres in front of the (illegible word) of Byford and you give one block each to your sister, Assunta Andino and another to your sister Caterina Gangemi married Ieraci, (illegible word) Byford, and another to your brother Antonio Gangemi Spiriguddi (partially illegible) who has a larger family and therefore needs more and he got less than everybody else. Have you understood?

Now look, listen and pay attention because when I die I will not leave any debts with anyone. Therefore, you will share 14 thousand dollars, two thousand dollars each for the seven of you children. Do not fight because I would be very upset where I am and I will come during your sleep.

Do not cry, arrange the funeral as I told you to.

Now I kiss you goodbye on my death and I wish good health and peace to all 7 children with all their families. Bless you.

33 On 26 November 1998 the Public Trustee wrote to Martella & Co, solicitors for Pino, enclosing a statement of account to 23 November 1998 of the estate of Domenica. It did not include the land as part of the assets of the estate. Under the heading 'unrealised assets' the statement of account recorded 'NB No action will be taken with regard to Dissolution of Partnership "Gangemi & Sons"'. The letter set out the share of the estate to be received by each of the nine beneficiaries. The trust officer also wrote:

In view of the length of time since Mrs Gangemi died and the inability of the beneficiaries to reach agreement amongst themselves the Public Trustee proposes to distribute the balance of funds held without taking any further action with regard to claims, furniture, effects and jewellery.

If you are in agreement with the above please sign the attached form and return it to this office as soon as possible.

Please note all beneficiaries will have to agree for this to be done.

34 On 1 January 1999 Anthony signed a release agreeing to the finalisation of Domenica's estate and agreeing that 'no further action is to be taken with regard to claims paid by the estate, outstanding claims and the distribution of furniture, effects and jewellery'. A copy of that document is attached to Pino's affidavit. The release was not signed by Caterina.

35 The land was sold at auction on 11 December 2008. The buyers were Nino and Paul. The sellers and purchasers have executed a transfer of land document and it has been stamped. Settlement, which was to be effected on 12 February 2009, has been prevented by the caveats.

Pino, Nino and Paul failed to fulfil their obligation under the deed to pay Giuseppe and Domenica a monthly allowance for living expenses.
Pino, Nino and Paul did not pay 'his share of income' for the land.

Pino purchased a property at 39 Williams Street Armadale (the Williams Street property) as Domenica's residence in lieu of the Briggs Road property. Pino and 'one of the second defendants' were the registered proprietors of the Williams Street property and when the property was sold, the proceeds were not paid to Domenica's estate.

Pino refused to give Anthony the block from the land as Domenica directed in the 1987 document.
Domenica continued to use the land after the dissolution of the partnership and she believed that she was the beneficial owner of the land with Pino holding the land in trust.
At the time of the finalisation of Domenica's estate, Anthony 'was forced' to sign the release as he was under 'duress' to support his five children.
Nino and Paul have verbally agreed to pay Anthony, in accordance with the 1987 document, if Pino pays his share.
Anthony intends to challenge his mother's will pursuant to the Inheritance (Family and Dependants Provision) Act 1972 (WA).

At the time Giueseppe and Domenica were transferring their properties to their sons (which I assume refers to the time at which the terms of the deed were being carried out), they told Caterina that a share of the land was going to be transferred to her.
At a family meeting on 18 March 1996 Pino, Nino and Paul confirmed that Giueseppe and Domenica had left her a share of the land and Pino told her that she would receive it when the land was subdivided.

Giueseppe and Domenica did not speak English and they entrusted Pino to dissolve the partnership in a fair manner for all the family.

Caterina and her sister received none of their parents' property.
Caterina was forced to leave school at age 14 in order to work on the farm and perform home duties.
Under the deed, Giueseppe and Domenica were entitled to a house purchased in their name and a monthly payment to meet living expenses. Pino, Nino and Paul did not meet their obligation to provide these entitlements.
Giueseppe and Domenica received Australian and Italian government pensions.
Domenica wrote the names of all seven of her children on the front of the 1985 will and intended that all children would receive a share of the Williams street property, which Domenica believed she owned.
Bank statements show that no funds apart from the pension were deposited into Domenica's bank account.
Caterina did not sign a release in relation to the finalisation of Domenica's estate.

Principles applicable to s 138 of the Transfer of Land Act

38 Under s 138 of the Transfer of Land Act, the proprietor of land against which a caveat has been lodged may summon the caveator to show cause why the caveat should not be removed, and the court may, upon proof that the caveator has been summoned, make such order as to the court seems fit.

39 The onus is then on the caveator to establish the existence of an arguable caveatable interest in the land itself; by its nature a caveatable interest must be a proprietary interest in land: Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42, 50; Jandric v Jandric [1999] WASC 22.

40 The caveatable interest must exist at the time the caveat is lodged; it cannot be lodged to protect an interest in the future: Martin v Official Trustee in Bankruptcy [1990] TASSC 20; [1990] Tas R 65, 69.

41 As a matter of form, the caveat must definitely, or explicitly, specify the estate or interest claimed. It must reveal to the registered proprietor the nature and extent of the claim: Leros Pty Ltd v Terara Pty Ltd [1992] HCA 22; (1992) 174 CLR 407, 422 - 423; Kerabee Park Pty Ltd v Daley [1978] 2 NSWLR 222, 231 - 232.

42 As Beech J observed in Bashford v Bashford [2008] WASC 138 [54], there are conflicting authorities on whether regard may be had to the statutory declaration in determining whether the caveat specifies the estate or interest claimed.

43 A claim in a caveat to 'an equitable interest', or an interest 'as the beneficiary of a resulting or constructive trust' is defective in form: Bashford v Bashford [56], [92].

44 Also, a caveat must not go beyond the legitimate claim necessary to protect the caveator's rights: Midland Brick Company Pty Ltd v Welsh [2006] WASC 122; (2006) 32 WAR 287 [342].

45 In the exercise of the court's discretion under s 138, the balance of convenience is a relevant factor. There is no rule of law that once an arguable case for a caveatable interest has been established, removal of the caveat will only be ordered if it is shown that the 'circumstances are so unusual' that the caveat should be removed. The discretion is to be exercised having regard to the particular circumstances of the case. Observations in cases to the effect that it would be unusual to discharge a caveat once an arguable caveatable interest has been shown, are general observations by reference to the particular facts of the case: see Navarac Pty Ltd v Moondancer Holdings Pty Ltd [2009] WASCA 95 [20], [21] and [29].

46 Both caveators have referred to the 1987 document as constituting, in effect, a variation or codicil to the 1985 will.

47 Pino has not objected to the reception into evidence of the 1987 document, notwithstanding s 71 of the Administration Act 1903 (WA). His counsel submitted, however, that the 1987 document is not a valid will as it does not comply with s 8 of the Wills Act 1970 (WA), and the 'informal wills' provisions in Part X of the Wills Act have no application because Domenica died prior to s 33 of the Wills Act coming into effect. I am unable to accept the submission that the Wills Act did not contain 'informal wills' provisions at the time of Domenica's death. The Wills Amendment Act 1987 (WA), No 69 of 1987 first introduced provisions regarding 'informal wills'. It came into operation on 22 November 1987. Domenica died in 1996. Those provisions (s 32, s 33, s 34, s 35, s 36, s 37 and s 38) have since then been amended, most recently by the Wills Amendment Act 2007 (WA), which came into operation on 9 February 2008. The 2007 amendments do not affect the operation of, relevantly, s 34 and s 35 of the Wills Act prior to 9 February 2008: s 33(2) of the Wills Act (as amended).

48 Despite the absence of objection to the reception into evidence of the 1987 document, it has not been the subject of a grant of probate or letters of administration. Accordingly, its validity as a variation or codicil to the 1985 will has not been proved in, or accepted by, this court. The 1987 document has not received 'the stamp and authority of the Probate Division, which has to be judicially satisfied that the will propounded is really a will and the will of the deceased': Browne on Probate (1881) 9. In my opinion, the 1987 document does not create any relevantly enforceable rights in the beneficiaries under it or under the 1985 will: In the Estate of Langton [1964] P 163, 178 - 179.

49 In my opinion, Anthony has no arguable caveatable interest, as claimed, in the land. First, as I have indicated, the 1987 document does not, in my opinion, create any enforceable rights in the beneficiaries. The will which created rights in the beneficiaries was the 1985 will.

50 Secondly, the land was not a part of the estate disposed of by the 1985 will, as the beneficial and legal ownership of the land had been transferred under the deed by, at the latest, 11 October 1982, when the land was registered in the names of Pino, Nino and Paul. Neither the beneficial nor the legal ownership of the land ever vested in the Public Trustee for the purposes of the 1985 will.

51 Thirdly, Anthony was a residuary beneficiary under the 1985 will. To the extent that Anthony had an interest under the 1985 will, or the 1987 document (even assuming its validity) prior to the completion of the administration of Domenica's estate, it was an interest in having the estate properly administered. Accordingly, even if the land, or a chose in action to recover the land, had formed part of Domenica's estate, Anthony had, prior to completion of the administration, no more than a right to have the estate properly administered by the Public Trustee and he would not have had a caveatable interest in the land. See Dean & Westham Holdings Pty Ltd v Lloyd (1991) 3 WAR 235, 257; Re Hayes' Will Trusts [1971] 1 WLR 758, 764. The estate has since been administered and its assets distributed without any suit alleging maladministration by the Public Trustee.

52 These three reasons are, in my view, sufficient to indicate that there is no arguable proprietary interest in the land as claimed.

53 Fourthly, moreover, even if, as the caveator contends, Pino, Nino and Paul failed to make the periodical payments which were required to be paid to Giuseppe and Domenica under cl 6(b) of the deed, and failed to purchase the Williams Street property in Domenica's name in accordance with cl 6(a) of the deed, there is no evidence or suggestion that they did not allow the parents to live in the Briggs Roads property rent-free whilst they wished to do so, or pay its rates and taxes, or maintain it in good repair, or keep it insured, or allow Domenica to live at the Williams Street property for the remainder of her life (cl 6(a)). Nor is there any evidence or suggestion that they did not make the payments or assume the liabilities, referred to in cl 6(c).

54 The consideration in cl 6 was not, in my view, severable as to its various parts. The total consideration in cl 6, in my view, constituted undivided consideration for the transfer of all the properties, licences, chattels and cattle, so that no one part of cl 6 could be said to be referable to, or apportioned to, the transfers of any particular property.

55 Accordingly, in my opinion, any failure to perform the particular obligations alleged could not, in any event, constitute a total failure of consideration. See Baltic Shipping Company v Dillon [1993] HCA 4; (1993) 176 CLR 344, 350 - 351, 377 - 378; and David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; (1992) 175 CLR 353, 383.

56 It is not necessary in these circumstances to consider whether and how a total failure of consideration could be regarded as the basis for the imposition of a constructive trust: cf Mason K, Carter J W, Tolhurst G J, Restitution Law in Australia (2nd ed, 2008) [251], [916] - [917].

57 Fifthly, Anthony's proposed claim under the Inheritance Act, rather than supporting his claim of a caveatable interest, seems to me to be inconsistent with his claim that he already has an interest in the land under the will. In any event, a claim of that kind does not support a caveatable interest: Quek v Beggs (1990) 5 BPR 11,761, 11,781. It is also presently statute barred: s 7(2)(a) of the Inheritance Act.

58 Sixthly, oral statements by others, and Domenica's subjective belief or intentions do not provide any legal basis for the claimed caveatable interest.

59 Furthermore, in my view, the form of the caveat is defective insofar as the interest claimed is a 'beneficial interest' in the land. Beneficial ownership is not asserted (nor on the evidence, could it have been). If an equitable interest less than beneficial ownership is intended to be alleged, the caveat does not reveal the nature and extent of the equitable interest claimed. Even if the accompanying statutory declaration could be considered, it does not assist in revealing the nature and extent of the interest claimed.

60 The matters referred to above, in relation to whether or not there is an arguable caveat interest, apply with equal force to Caterina's claim. The matters raised in her affidavit evidence regarding her personal circumstances in having left school at an early age and not receiving any share of the parents' property, do not provide any legal basis for the claimed caveatable interest. Whilst she was left without any real or tangible benefit from her mother's estate, that does not, regrettably for her, assist in the advancement of an arguable caveatable interest in the land.

61 Also, in my view, the caveat is defective in form in its reference to an interest claimed 'upon the doctrine in resulting trusts as a beneficiary'. Even if read with the statutory declaration, no meaningful content can be given to the claim that the caveator is a beneficiary under a resulting trust. A resulting trust arises where trust property reverts or results in the settlor, by reason of an intention presumed by law, in the absence of an intention in the settlor. There are two principal circumstances which give rise to a resulting trust. One is where a person pays for and purchases property which is vested in another (subject to the principle of advancement or direct evidence that the first person intended the other to have the beneficial ownership in the property). The second is where the first person transfers property on express trusts, but the trusts do not exhaust the beneficial interest, and the law presumes the unexhausted residue is held on trust for the transferor. See Heydon J D and Leeming M J, Jacobs' Law of Trusts in Australia (7th ed, 2006) [307]. None of the matters referred to in the statutory declaration point to the existence, arguably, of a resulting trust in favour of Caterina.

62 For the above reasons, in my opinion, the caveats ought not be allowed to stand.

63 It is not necessary to consider the balance of convenience but if it were, it would support the removal of the caveats. The caveators knew that the estate was being distributed in 1998, and knew of the matters of which they now complain, yet they took no proceedings to compel the Public Trustee to get in the land as an asset of the estate on the basis of some alleged cause of action vesting in Domenica's personal representative. In Anthony's case, he signed a release. Eleven years have passed since then, and in the meantime the caveators have not commenced any proceedings to vindicate their claimed interests in the land, title to which was first registered in the names of the current owners in 1982, pursuant to a transaction in 1978.

64 I would allow the plaintiff's applications for removal of the caveats.

(Family and Dependants Provision) Act 1972

GANGEMI -v- GANGEMI [2009] WASC 195 (22 July 2009)

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GANGEMI -v- GANGEMI [2009] WASC 195 (22 July 2009)

Legislation Cited (4)

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